LAWRENCE  J.  GUTTER 

Collection  of  Chicagoono 

THE   UNIVERSITY   OF   ILLINOIS 
AT  CHICAGO 

The  University  Library 


IN  THE 

SUPREME  COURT  OF  THE  UNITED  STATES. 

OCTOBER  TERM,  A.  D.  1892. 


ILLINOIS  CENTRAL  RAILROAD    COMPANY, 

Appellant, 

vs. 

THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS, 
AND  THE  CITY  OF  CHICAGO, 

Affellees. 


BRIEF   FOR  APPELLANT. 


BENJAMIN  F.  AYER, 

Of  Counsel  fob  Appellant. 


iXft 


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IN  THE 


Supreme  Court  of  the  United  States, 

October  Term,  A.  D.  1892. 


ILLINOIS   CENTRAL  RAILROAD  COMPANY, 

Appellant, 

vs. 

THE  PEOPLE    OF  THE  STATE  OF  ILLINOIS' and  THE 

CITY  OF  CHICAGO, 

Appellees. 


Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Northern  District 

of  Illinois. 


Statement  of  the  Case. 


This  suit  was  commenced  by  an  information  or  bill  in  equity 
filed  by  the  Attorney  General,  in  the  name  of  the  People  of 
the  State  of  Illinois,  March  i,  1883,  in  the  Circuit  Court  of 
Cook  Count)7,  Illinois,  against  the  Illinois  Central  Railroad 
Company  and  the  City  of  Chicago.  The  United  States  was 
also  named  as  a  party  defendant,  but  did  not  enter  an  appear- 
ance. No  case  was  stated  in  the  information,  nor  was  any  re- 
lief asked,  against  the  City  of  Chicago.  The  only  grievances 
complained  of  were  the  alleged  acts  and  pretensions  of  the  Il- 
linois Central  Railroad  Company.      (Rec,  3-15.) 

The  Railroad  Company  filed  its  answer  in  the  State  court 
at  the  first  term  after  the  commencement  of  the  suit  (Rec, 
17-34),  a°d  also  its  petition  and  bond  for  the  removal  of  the 
cause  into  the  Circuit  Court  of  the  United  States  for  the  North- 


ern  District  of  Illinois.  (Rec,  34-38.)  The  reason  assigned 
for  the  removal  was  that  it  was  a  suit  arising  under  the  Con- 
stitution of  the  United  States,  within  the  meaning  of  those 
words  as  used  in  the  second  section  of  the  Act  of  Congress  of 
March  3,  1875,  trien  m  l01"ce,  entitled  "An  Act  to  determine 
the  jurisdiction  of  Circuit  Courts  of  the  United  States  and  to 
regulate  the  removal  of  cases  from  the  State  courts,  and  for 
other  purposes." 

A  transcript  of  the  record  was  filed  in  the  United  States 
Circuit  Court  May  7,  1883  (Rec,  1);  and  on  the  22d  of  the 
same  month  the  City  of  Chicago  appeared  and  filed  its  answer 
in  that  court,  admitting  all  the  allegations  of  fact  contained  in 
the  information.      (Rec,  39-41.) 

A  motion  was  made  subsequently  by  the  complainants'  so- 
licitor to  remand  the  cause  to  the  State  court,  but  the  motion 
was  overruled  (Rec,  41)  on  grounds  mentioned  in  the  opinion 
of  Mr.  Justice  Harlan  in  State  of  Illinois  v.  Illinois  Central  R. 
Co.,  16  Fed.  Rep.,  881. 

The  pleadings  afterwards  underwent  various  alterations. 
An  amended  information  was  filed  by  the  Attorney  General, 
March  6,  1886,  (Rec,  46-67),  to  which  answers  were  filed  by 
the  Railroad  Company  and  the  city.      (Rec,  69-95,  97-100.) 

Amendments  to  the  answer  of  the  city,  and  a  cross-bill  by 
the  city,  were  filed  June  20,  1887.  (Rec,  104-108,  108-117.) 
On  the  21st  of  June  1887,  leave  was  given  the  Attorney  Gen- 
eral to  file  amendments  to  the  amended  informaiion,  subject  to 
the  further  judgment  of  the  court  as  to  the  propriety  of  the 
same  to  be  determined  at  the  hearing;  and  the  city  of  Chicago 
was  permitted,  subject  to  the  same  reservation,  to  file  amend- 
ments to  its  answer  and  a  cross-bill.  The  defendants  were  al- 
lowed to  file  answers  to  the  information  as  amended  and  to  the 
cross-bill  within  ten  days,  if  they  should  desire  to  do  so;  and  if 
no  further  answer  should  be  made  to  the  amended  information, 
it  was  ordered  that  those  already  filed  should  be  treated 
as  answers  to  the  same  and  all  amendments  thereof.  (Rec, 
117.)  On  the  same  day,  a  second  amended  information  was 
filed  by  the  Attorney  General,  (Rec,  121-143);  and  June 
29,  1887,  answers  were  filed  by  him  and  by  the  Railroad  Com- 
pany to  ihe  cross-bill.  (Rec,  144-150,  151-163.)  Replica- 
cations  were  filed  by  the  Attorney  General  on  the  same  day  to 


°o: 


the  answers  of  the  City  of  Chicago  and  the  Railroad  Company, 
(Rec,  164,  165);  and  on  the  next  day  an  amendment  was 
made  to  the  answer  of  the  Railroad  Company  to  the  amended 
information.  (Rec,  166.)  This  amendment  consists  of  a 
single  clause  to  be  inserted  in  the  last  paragraph  on  page  87 
of  the  printed  record,  next  after  the  word  "  insists  "  in  the  first 
line. 


The  avowed  object  of  the  suit  is  to  settle  by  judicial  decree 
the  title  to  certain  lands  in  Chicago,  situated  on  the  border  of 
Lake  Michigan  between  the  mouth  of  the  Chicago  river  and 
Sixteenth  street,  which  have  been  reclaimed  from  the  lake  by 
the  Illinois  Central  Railroad  Company  and  occupied  by  it  for 
many  years  for  railroad  purposes,  and  also  the  title  to  the  sub- 
merged lands  immediately  adjacent  to  that  part  of  the  lake 
shore. 

It  is  necessary  to  a  clear  understanding  of  the  questions  in- 
volved, that  a  general  outline  should  be  given  of  the  essential 
facts  and  circumstances  relating  to  the  incorporation  of  the 
Railroad  Company,  the  location  of  its  railroad  within  the  city 
of  Chicago,  and  the  rights  acquired  by  the  Company  to  the 
lands  in  controversy. 

By  an  Act  of  Congress,  approved  September  20,  1850  (9 
U.  S.  Statutes  at  Large,  466),  the  right  of  way  not  exceeding 
200  feet  in  width  through  the  public  lands  was  granted  to  the 
State  of  Illinois,  for  the  construction  of  a  railroad  from  the 
southern  terminus  of  the  Illinois  and  Michigan  Canal  in  that 
State  (at  LaSalle)  to  Cairo,  at  the  confluence  of  the  Ohio  and 
Mississippi  rivers,  with  a  branch  from  that  line  to  Chicago, 
and  another,  via  the  city  of  Galena,  to  Dubuque,  in  the  State 
of  Iowa.  A  grant  of  public  lands  was  also  made  to  the  State 
to  aid  in  the  construction  of  the  railroad  and  branches,  which, 
by  the  terms  of  the  Act,  were  to  "  be  and  remain  a  public 
highway  for  the  use  of  the  Government  of  the  United  States 
free  from  toll  or  other  charge  upon  the  transportation  of  any 
property  or  troops  of  the  United  States."  It  was  also  pro- 
vided that  the  United  States  mail  should  at  all  times  be  trans- 
ported on  the  said  railroad  under  the  direction  of  the  Post 
Office  Department  at  such  price  as  the  Congress  may  by  law 
direct. 

This  Act  of  Congress  was  formally  accepted  by  the  legisla- 


*>/"' 


ture  of  the  State  February  17,  1851  (Laws  1851,  192-3). 
Seven  days  before  the  acceptance — February  10,  185 1 — the 
Illinois  Central  Railroad  Company  was  incorporated  for  the 
purpose  of  constructing,  maintaining  and  operating  the  railroad 
and  branches  contemplated  in  the  Act  of  Congress.  (Rec, 
611   623.) 

By  the  second  section  of  its  charter,  the  Company  was  au- 
thorized and  empowered  "  to  survey,  locate,  construct,  com- 
"  plete,  alter,  maintain  and  operate  a  railroad  with  one  or  more 
"  tracks  or  lines  of  rails,  from  the  southern  terminus  of  the 
"  Illinois  and  Michigan  Canal  to  a  point  at  the  city  of  Cairo, 
"  with  a  branch  of  the  same  to  the  city  of  Chicago  on  Lake 
"  Michigan,  and  also  a  branch  via  the  city  of  Galena  to  a  point 
"  on  the  Mississippi  river  opposite  the  town  of  Dubuque  in  the 
"  State  of  Iowa." 

It  is  provided  in  the  third  section,  that  "  the  said  corporation 
"  shall  have  right  of  way  upon,  and  may  appropriate  to  its  sole 
"  use  and  control  for  the  purposes  contemplated  herein,  land 
"  not  exceeding  two  hundred  feet  in  width  through  its  entire 
"length;  may  enter  upon  and  take  possession  of  and  use  all 
"  and  singular  any  lands,  streams  and  materials  of  every  kind, 
"  for  the  location  of  depots  and  stopping  stages,  for  the  purpose 
"  of  constructing  bridges,  dams,  embankments,  excavations, 
"  station-grounds,  spoil  banks,  turnouts,  engine-houses,  shops 
"  and  other  buildings  necessary  for  the  construction,  complet- 
"  ing,  altering,  maintaining,  preserving  and  complete  operation 
"  of  said  road.  All  such  lands,  waters,  materials  and  privileges 
"  belonging  to  the  State,  are  hereby  granted  to  said  corporation 
"for  said  purposes;  but  when  owned  or  belonging  to  any  per- 
"  son,  company  or  corporation,  and  cannot  be  obtained  by 
"  voluntary  grant  or  release,  the  same  may  be  taken  and  paid 
"  for,  if  any  damages  are  awarded,  in  the  manner  provided  in 
"  'An  Act  to  provide  for  a  general  system  of  railroad  incorpo- 
rations' approved,. November  5,  1849;  and  the  final  decision 
"  or  award  shall  vest  in  the  corporation  hereby  created  all  the 
"  rights,  franchises  and  immunities  in  said  Act  contemplated  and 
"provided:'' 

The  eighth  section  has  the  following  provision  :  "Nothing 
"  in  this  Act  contained  shall  authorize  said  corporation  to  make 
"  a  location  of  their  track  within  any  city  without  the  consent 
"  of  the  common  council  of  said  city." 


OU  4 


By  the  fifteenth  section,  the  right  of  way  and  all  the  lands 
granted  to  the  State  by  the  Act  of  Congress  before  mentioned, 
and  also  the  right  of  way  over  and  through  lands  owned  by 
the  State,  were  ceded  and  granted  to  the  corporation,  for  the 
"  purpose  of  surveying,  locating,  constructing,  completing,  al- 
tering, maintaining  and  operating  said  road  and  branches." 
There  was  a  requirement  in  this  section  (clause  3)  that  the 
railroad  should  be  built  into  the  city  of  Chicago. 

By  the  eighteenth  section,  the  Company  is  required,  in  con- 
sideration of  the  grants,  privileges  and  franchises  conferred, 
to  pay  into  the  treasury  of  the  State,  on  the  first  Monday  of 
December  and  June  of  each  year,  five  per  centum  of  the  gross 
receipts  of  the  road  and  branches  for  the  six  months  then 
next  preceding. 

The  twenty-second  section  provides  for  the  assessment  of 
an  annual  tax  for  State  purposes  upon  all  the  property  and  as- 
sets of  the  corporation;  and  it  this  tax  and  the  five  per  cent, 
charge  upon  the  gross  receipts  shall  not  amount  to  seven  per 
cent,  of  the  total  proceeds,  receipts  or  income  of  the  Company, 
it  is  required  to  pay  the  difference  into  the  State  treasury,  "  so 
as  to  make  the  whole  amount  paid  equal  at  least  to  seven  per 
cent,  of  the  gross  receipts  of  said  corporation."  Exemption  is 
granted  in  this  section  from  "  all  taxation  of  every  kind,  except 
as  herein  provided  for." 

The  Act  of  November  5,  1849,  referred  to  in  the  third  sec- 
tion of  the  charter,  provides  a  mode  for  condemning  land  re- 
quired for  railroad  uses,  and  contains  an  express  provision  that 
upon  the  entry  of  judgment,  the  corporation  "shall  become 
seized  in  fee  of  all  the  lands  and  real  estate  described  dur- 
ing the  continuance  of  the  corporation."    (2  Laws  1849,  27.) 

The  consent  of  the  common  council  to  the  location  of  the 
railroad  within  the  city  of  Chicago  was  given  bv  an  ordinance 
passed  June  14,  1852.  (Rec,  624-629.)  The  ordinance 
provided  (Sec.  1),  that  the  railroad  (with  one  or  more  tracks) 
should  enter  the  city  "  at  or  near  the  intersection  of  its  south- 
"  ern  boundary  with  Lake  Michigan,  and,  following  the  shore 
"  on  or  near  the  margin  of  said  lake  northerly  to  the  southern 
"  bounds  of  the  open  space  known  as  Lake  Park,  in  front  of 
"  canal  section  15,  continue  northerly  across  the  open  space  in 
"  front  of  said  section  15  to  such  grounds  as  the  Company  may 
"  acquire  between   the  north  line   of   Randolph  street  and  the 


"  Chicago  river,  upon  which  said  grounds  shall  be  located  the 
"  depot  of  said  railroad  within  the  city,  and  such  other  build- 
ings, slips  or  apparatus  as  may  be  necessary  and  convenient 
"for  the  business  of  said  company." 

The  ordinance  also  contained  the  following  additional  pro- 
visions: 

"  Sec.  2.  That  said  Company  may  enter  upon  and  use  in 
"  perpetuity  for  its  said  line  of  road  and  other  works  neces- 
"  sary  to  protect  the  same  from  the  lake,  a  width  of  300  feet 
"  from  the  southern  boundary  of  said  public  ground  near 
"Twelfth  street  to  the  northern  line  of  Randolph  street;  the 
"  inner  or  west  line  of  the  ground  to  be  used  by  said  Company 
"  to  be  not  less  than  400  feet  east  from  the  west  line  of  Mich- 
"  igan  avenue  and  parallel  thereto. 

"  Sec.  3.  The  said  Company  may  extend  their  works  and 
"  fill  out  into  the  lake  to  a  point  in  the  southern  pier  not  less 
"  than  400  feet  west  from  the  present  east  end  of  the  same; 
"  thence  parallel  with  Michigan  avenue  to  the  north  line  of 
"  Randolph  street  extended;  but  it  is  expressly  understood 
"  that  the  common  council  does  not  grant  any  right  or  privi- 
"  lege  beyond  the  limits  above  specified,  nor  beyond  the  line 
"  that  may  be  actually  occupied  by  the  works  of  said  Com- 
"  pany.  It  is  further  expressly  understood  that  should  any 
"  damage  or  obstruction  occur  to  the  harbor  of  Chicago, 
"  clearly  traceable  to  the  construction  of  said  works  contem- 
"  plated  by  sections  two  and  three  hereof,  then  the  said  Com- 
"  pany  shall  be  held  responsible  for  the  same." 

"  Sec  7-  The  said  Company  shall  erect  and  complete, 
"  within  three  years  after  they  shall  have  accepted  this  ordi- 
"  nance,  and  shall  forever  thereafter  maintain  a  continuous  wall 
"  or  structure  of  stone  masonry,  pier  work  or  other  sufficient 
"  material,  of  regular  and  sightly  appearance,  and  not  to  exceed 
"  in  height  the  general  level  of  Michigan  avenue  opposite 
"  thereto,  from  the  north  side  of  Randolph  street  to  the  south- 
"  ern  boundary  of  Lake  Park  before  mentioned,  at  a  distance 
,'  of  not  more  than  300  feet  east  from  and  parallel  with 
"  the  western  or  inner  line  pointed  out  for  said  Company,  as 
"  specified  in  section  two  hereof,  and  shall  continue  said  works 
"  to  the  southern  boundary  of  the  city,  at  such  distance  out- 
"  side  of  the  track  of  said  road  as  may  be  expedient,  which 
"  structure  shall  be  of  sufficient  strength  and  magnitude  to  pro- 


o 


"  tect  the  entire  front  of  said  city,  between  the  north  line 
"  of  Randolph  street  and  its  southern  boundary  from  further 
"  damage  or  injury  from  the  action  of  the  waters  of  Lake 
"  Michigan,  and  that  part  of  the  structure  south  of  Lake  Park 
"  shall  be  commenced  and  prosecuted  with  all  reasonable  dis- 
"  patch  after  the  acceptance  of  this  ordinance. 

"  Sec.  9.  The  said  Company  shall  erect  no  buildings  be- 
"  tween  the  north  line  of  Randolph  street  and  the  south  line  of 
"  the  said  Lake  Park,  nor  occupy  nor  use  the  works  proposed 
"  to  be  constructed  between  these  points,  except  for  the  pas- 
"  sage  of,  or  for  making  up  or  distributing  their  trains;  nor 
"  place  upon  any  part  of  their  works  between  said  points,  any 
"  obstruction  to  the  view  of  the  lake  from  the  shore,  nor  suffer 
"  their  locomotives,  cars  or  other  articles  to  remain  upon  their 
"  tracks,  but  only  erect  such  works  as  are  proper  for  the  con- 
"  struction  of  their  necessary  tracks  and  protection  of  the 
"  same." 

"  Sec.  12.  Upon  the  acceptance  of  this  ordinance  by  the 
"  said  Company  (which  shall  be  within  ninety  days  of  the  pass- 
"  ing  of  the  same)  a  contract  or  agreement  embodying  the 
"  provisions  herein  contained,  and  stipulating  that  the  permis- 
"  sion,  rights  and  privileges  hereby  conferred  upon  said  Com- 
"  pany  shall  depend  upon  the  performance  on  their  part  of  the 
"  requirements  made  upon  them  by  this  ordinance,  shall  be 
"  executed,  sealed  and  delivered  on  the  part  of  the  City  of 
"  Chicago,  by  the  mayor  thereof,  and  on  the  part  of  the  Illi- 
"  nois  Central  Railroad  Company,  by  the  president  thereof, 
"  both  in  usual  legal  form." 

The  ordinance  was  accepted  by  the  Railroad  Company 
September  2,  1852;  and  a  contract  under  seal  between  the 
Company  and  the  city  in  accordance  therewith  was  executed 
March  28,  1853.      (Rec,  623-631.) 

A  map  of  Chicago,  published  by  Rees  and  Rucker  in  1849 
will  be  found  in  the  Record,  which,  it  is  proved,  represents 
with  substantial  accuracy  the  shore  line  and  the  land  bordering 
upon  the  lake  between  the  river  and  the  southern  boundary  of 
the  city  (then  Twenty-second  street)  just  before  the  railroad 
was  located.  (Rec,  284,  285,  286,  1,194.)  Another  map 
published  by  Henry  Hart  in  1853,  also  to  be  found  in  the 
Record,  shows  the  situation  the  year  after  the  road  was 
located.     (Rec,  2§4,  286, 1,195.) 


370 

8 

The  ground  designated  as  Lake  Park  in  the  ordinance  of 
June  14,  1852,  is  represented  upon  the  Rees  and  Rucker  map 
as  a  part  of  Michigan  avenue.  Upon  the  Hart  map  it  is  rep- 
resented in  the  same  way,  but  the  words  "  Lake  Park  "  are  also 
inscribed  in  the  south-east  corner.  This  park  (including  the 
-avenue)  consisted,  in  1852,  of  a  narrow  strip  of  ground  on  the 
border  of  the  lake  extending  from  Randolph  street  to  Park 
Row  (Block  23).  The  length  of  the  strip  was  about  a  mile 
and  one-eighth,  and  it  varied  in  width  from  ninety  to  four  hun- 
dred feet.      (Rec,  282-3.) 

The  evidence  shows  that  for  several  years  preceding  the 
passage  of  the  ordinance  the  waters  of  the  lake  had  been  con- 
stantly wearing  away  this  part  of  the  shore.  This  process  of 
erosion  was  apparently  caused  by  the  construction  of  the  piers 
by  the  Government  at  the  mouth  of  the  river  at  some  time 
prior  to  1835,  and  it  appears  to  have  been  greatly  accelerated 
by  the  extension  of  the  piers  a  year  or  two  later.  Attempts 
were  made  from  time  to  time  by  the  propertv-owners  on  Mich- 
igan avenue  and  by  the  city  to  protect  the  shore  from  further 
invasion  by  the  lake,  but  their  efforts  proved  ineffectual. 
When  the  railroad  was  located  in  1852,  more  than  half  the 
land  which  in  1835  was  included  within  the  limits  of  the  park 
and  avenue  had  been  worn  away.  At  that  time  the  lake  had 
so  far  advanced  upon  the  shore,  that  from  Randolph  street  to 
Jackson  street  only  a  narrow  margin  of  land  from  ninety  to 
one  hundred  and  twelve  feet  wide  was  left  between  the  west 
line  of  the  avenue  and  the  lake,  and  serious  apprehensions 
were  felt  by  the  mayor  of  the  city  and  other  residents  on 
Michigan  avenue  for  the  safety  of  their  property.  At  the  south 
end,  the  width  of  the  park  and  avenue  had  been  diminished 
since  1836  from  six  or  seven  hundred  feet  to  four  hundred. 
(Rec,  testimony  of  R  B.  Mason,  282-284;  J.  Y.  Scammon, 
232-258,   285-296,  441-449.) 

The  waters  of  the  lake  had  wrought  similar  effects  during 
the  same  period  upon  the  shore  south  of  Park  Row,  between 
Twelfth  street  and  Eighteenth  street.  In  1840,  the  dry  land 
along  this  part  of  the  shore  extended  into  the  lake  beyond  the 
present  works  of  the  Railroad  Company.  Many  acres  were 
carried  away  by  abrasion  between  1835  and  1852.  (Rec, 
Testimony  of  J.  Y.  Scammon,  289-291;  C.  C.  P.  Holden, 
469-483.) 

The  strip  of  ground  designated  in  the  ordinance  for  the  lo- 


O  i 


cation  and  construction  of  the  railroad  between  the  southern 
boundary  of  Lake  Park  and  the  north  line  of  Randolph  street, 
was  300  feet  wide,  the  west  line  of  the  strip  being  400  feet 
east  of  the  west  line  of  Michigan  avenue  and  parallel  thereto. 
The  entire  strip  was  covered  by  the  waters  of  the  lake.  The 
railroad  was  located  and  built  as  prescribed  by  the  ordinance. 
The  tracks  were  laid  upon  a  pile-bridge,  and  the  depth  of 
water  along  the  line  of  piling  varied  from  two  and  a  half  to 
nine  feet.  An  exterior  breakwater  to  protect  the  company's 
works  and  ihe  shore  was  built  outside  the  tracks  on  a  line 
parallel  with  and  about  600  feet  east  of  the  west  line  of  Michi- 
gan avenue;  and  a  similar  protection  was  erected  south  of 
Park  Row,  at  a  convenient  distance  east  of  the  tracks,  to  a 
point  far  beyond  the  southern  boundary  of  the  city.  The  space 
between  the  breakwater  and  the  inner  or  west  line  of  the  rail- 
road, north  of  Park  Row,  was  afterwards  filled  with  earth  by 
the  Railroad  Company.  This  work  was  done  gradually,  and 
the  filling  was  not  completed  until  after  the  great  fire  in  Chi- 
cago of  1871.  (Rec,  testimony  of  R.  B.  Mason,  282-284;  J. 
Y.  Scammon,  252;  L.  P.  Morehouse,  352,  361,   363.) 

From  1852  to  187 1,  and  later,  a  considerable  area  between 
Park  Row  and  Randolph  street,  west  of  the  railroad,  remained 
covered  by  water.  This  space  has  since  been  rilled  with  earth. 
Michigan  avenue,  as  now  laid  out  and  improved,  is  ninety  feet 
wide,  and  the  public  ground  between  it  and  the  railroad,  ex- 
cept for  a  short  distance  at  the  north  end,  has  a  uniform  width 
of  310  feet.  The  Hart  map,  published  in  1853,  shows  the  lo- 
cation of  the  railroad  in  the  open  waters  of  the  lake,  and  the 
body  of  water  which  lay  between  it  and  the  shore.  Two  litho- 
graphic views  of  Michigan  avenue,  one  made  in  i860  and  the 
other  in  1863,  which  were  put  in  evidence,  are  proved  to  be 
substantially  accurate  representations  of  the  lake  shore  as  it 
was  when  they  were  published.  (Rec,  284,  288,  290,  /,/p7, 
i,i98.) 

When  the  ordinance  of  1852  was  passed,  the  City  of  Ciiicago 
was  incorporated  under  a  special  charter  approved  February 
14,  1851.  Its  eastern  boundary  was  the  lake;  but  police  juris- 
diction was  vested  in  the  common  council  over  the  harbor, 
which  by  the  terms  of  the  charter  included  "  the  piers  and  so 
much  of  Lake  Michigan  as  lies  within  the  distance  of  one  mile 
into  the  lake,  and  the  Chicago  river  and  its  branches  to  their 
respective  sources."      (Rec,  540-542.) 


373 


IO 


By  an  amendment  to  the  charter  approved  February  28, 
1854,  *ne  corporate  limits  were  extended,  so  as  to  "  include  so 
much  of  the  waters  and  bed  of  the  lake  as  lie  within  one  mile 
of  the  shore  thereof  and  east  of  the  (then)  present  boundaries 
of  the  city."     (Rec,  543-4-) 

It  is  not  pretended  that  the  State  has  ever  made  a  direct 
grant  to  the  city  of  any  part  of  the  bed  of  Lake  Michigan.  But 
the  city  claims  to  have  been  in  1852,  and  since,  the  legal  own- 
er of  the  public  ground  on  the  shore  of  the  lake  between  Ran- 
dolph street  and  Park  Row.  The  origin,  history  and  nature 
of  this  title  may  be  as  conveniently  explained  here  as  at  any 
other  point  in  the  statement. 

That  part  of  the  public  ground  lying  south  of  the  center  line 
of  Madison  street  extended  is  embraced  within  a  local  subdi- 
vision known  as  "  Fractional  Section  Fifteen  Addition  to  Chi- 
cago." The  remainder  lies  within  "  Fort  Dearborn  Addition 
to  Chicago." 

Fractional  Section  Fifteen  Addition.  It  is  alleged  in 
the  information  and  admitted  in  the  answers,  that  fractional 
section  fifteen  was  one  of  the  tracts  of  public  land  granted  to 
the  State  by  an  Act  of  Congress  approved  March  2,  1827, 
for  the  purpose  of  aiding  the  Slate  in  opening  a  canal  to 
unite  the  waters  of  the  Illinois  river  with  those  of  Lake  Mich- 
igan. All  the  granted  lands  were  declared  to  be  "  sub- 
ject to  the  disposal  of  the  legislature  of  the  State  for  the 
purpose  aforesaid  and  no  other";  and  express  provision  was 
made  in  the  Act  that  the  State  under  the  authority  of  its  legis- 
lature should  "  have  power  to  sell  and  convey  the  whole 
or  any  part  of  the  said  land,  and  to  give  a  title  in  fee  simple 
therefor  to  whomsoever  shall  purchase  the  whole  or  any 
part  thereof."  (Rec,  580.)  There  was  a  proviso  that  the 
canal  should  be  commenced  within  five  years  and  completed 
within  twenty  years  from  the  passage  of  the  Act;  but  by  an 
amendatory  Act  approved  March  2,  1833,  the  time  for  com- 
mencing and  completing  the  canal  was  extended  five  years. 
(Rec,  648.) 

The  canal  was  completed  and  open  for  navigation  in  1848 
(Rec,  5°7)>  ar)d  has  been  ever  since  in  use  during  the  season 
of  navigation. 

By  an  Act  of  the  legislature,  approved  January  22,  1829, 
a  board    of  canal    commissioners    was    created,  to    locate  the 


373 

canal  and  to  commence  and  construct  the  work.      (Rec,  580- 

583-) 

By  a  subsequent  Act,  approved  January  9,  1836,  a  new 
board  was  created  consisting  of  three  commissioners,  who 
were  put  in  charge  of  the  canal  and  canal  property.  These 
commissioners  were  State  officers,  and  the  board  continued  in 
existence  until  1843.  By  this  Act  the  commissioners  were  di- 
rected to  "  cause  the  canal  lands  in  or  near  Chicago,  suitable 
therefor,  to  be  laid  off  into  town  lots,"  and  to  proceed  on 
the  20th  day  of  June  then  next  to  sell  the  lots  in  fractional  sec- 
tion fifteen,  adjoining  the  town  of  Chicago,  "  it  being  first  laid  off 
and  subdivided  into  town  lots,  streets  and  alleys,  as  in  their 
best  judgment  will  best  promote  the  interest  of  the  said  canal 
fund."       (Rec,  592,  Sees.  XXXII  and  XXXIII.) 

In  April  1836,  the  canal  commissioners  caused  a  map  to  be 
made  upon  which  fractional  section  fifteen  is  subdivided  into 
town  lots  and  streets.  (Rec,  235-6,  i,ipi.)  The  map  is 
styled  "Map  of  Fractional  Section  No.  Fifteen,  Township  39 
North,  Range  14  East  of  the  3rd  Principal  Meridian.  Surveyed 
and  subdivided  by  the  board  of  Canal  Commissioners,  pursuant 
to  law,  in  the  month  of  April,  A.  D.  1836."  It  shows  upon  its 
face  that  the  subdivision  embraces  the  whole  fractional  section. 
The  tract  is  bounded,  by  the  map,  on  the  north  by  Madison 
street,  west  by  State  street,  south  by  Twelfth  street, 
and  east  by  Lake  Michigan.  In  front  of  the  easterly  tier  of 
lots  a  street  of  irregular  width,  bordering  upon  the  lake,  ex- 
cept for  the  distance  of  200  feet  at  the  south  end,  is  delineated 
on  the  map  and  marked  *'  Michigan  Avenue."  The  map  is 
certified  by  the  canal  commissioners  under  date  of  June  13, 
1836,  and  appears  to  have  been  acknowledged  by  them  before 
a  justice  of  the  Supreme  Court  June  10,  1836.  It  is  also  cer- 
tified by  one  Edward  B.  Talco.t,  who  describes  himself  as 
"  Assistant  Engineer  in  the  employment  of  Commissioners  of 
Illinois  and  Michigan  Canal,"  under  date  of  June  13,  1836, 
and  was  filed  for  record  in  the  county  recorder's  office  July 
20,  1836. 

A  statute  of  Illinois  (approved  February  27,  1833)  was 
then  in  force  providing  for  the  recording  of  town  plats,  by 
which  it  was  enacted,  that  whenever  any  county  commission- 
ers or  other  persons  wished  to  lay  out  a  town,  or  an  addition 
or  subdivision  of  outlots,  they  should  cause  the  same  to  be 
surveyed  and  a  plat  or  map  thereof  to  be  made  by  the  county 


12 


surveyor,  Which  should  "particularly  describe  and  set  forth  all 
"  the  streets,  alleys,  commons  or  public  grounds,  and  all  in  and 
"  out  lots  or  fractional  lots,  within,  adjoining  or  adjacent  to  said 
"  town,  giving  the  names,  widths,  corners,  boundaries  and  extent 
"  of  all  such  streets  and  alleys."  The  statute  required  that  the  map 
should  be  certified  by  the  surveyor  and  acknowledged  by  the 
county  commissioners  or  other  persons  making  the  subdivision 
before  a  justice  of  the  supreme  court,  a  justice  of  a  circuit 
court,  or  a  justice  of  the  peace  in  the  count\  in  which  the  land 
lay,  whose  certificate  of  acknowledgment  should  be  endorsed 
on  the  map  ;  and  that  the  map  with  the  certificates  of  the  sur- 
veyor and  of  acknowledgment  should  be  recorded.  It  was 
further  provided  that  every  donation  or  grant  to  the  public,  or 
any  individual,  religious  society,  or  corporation,  marked  or 
noted  as  such  on  the  map  or  plat,  '*  when  made  out,  certified, 
acknowledged  and  recorded  as  required  by  this  act,"  should 
"be  deemed  in  law  and  in  equity  a  sufficient  conveyance  to 
"  vest  the  fee  simple  title  of  all  such  parcel  or  parcels  of  land  as 
"are  therein  expressed,  and  shall  be  considered  to  all  intents 
"  and  purposes  as  a  general  warranty  against  such  donor  or 
"donors,  their  heirs  and  representatives,  to  the  said  donee  or 
"donees,  grantee  or  grantees,  for  his,  her  or  their  use,  for  the 
"  uses  and  purposes  therein  named,  expressed  or  intended,  and 
"for  no.  other  use  or  purpose  whatever.  And  the  land  intended 
"  to  be  for  stre ets,  alleys,  ways,  commons,  or  other  public  uses, 
"in  any  town  or  city,  or  addrion  thereto,  shall  be  held  in  the 
"  corporate  name  thereof,  in  trust  to  and  for  the  uses  and  pur- 
poses set  forth,  and  expressed  or  intended."  (Rev.  Stat.  1833, 
599;  Rec,  533-4O 

The  original  town  of  Chicago  was  laid  out  by  the  canal 
commissioners  August  4,  1830  (Rec,  334),  and  upon  the  or- 
ganization of  Cook  County,  January  15,  1831,  was  made  the 
coumy  seat.  (Laws  1831,  54.)  The  town  was  afterwards 
incorporated  by  an  Act  of  the  legislature  approved  Februan' 
11,  1835,  with  boundaries  which  included  fractional  sections 
ten  and  fifteen  in  township  thirty-nine  north,  range  fourteen 
east  of  the  third  principal  meridian ;  but  the  authority  of  the 
board  of  trustees  was  rot  to  be  extended  over  the  south  frac- 
tion of  section  ten  until  the  same  should  cease  to  be  occupied 
by  the  United  States.      (Rec,  334-5;  Laws  1835,  2°4-) 

It  is  alleged  in  the  information  and  cross-bill  and  admitted 
in  the  answers  to    both,  that  all   the  town    lots  in   Fractional 


13 

Section  Fifteen  Addition  were  sold  by  the  canal  commissioners 
as  laid  out  on  the  plat  (Rec,  127,  78,  99,  in,  146,  154); 
and  it  is  proved  that  they  were  sold  at  public  sale  and  with 
reference  to  the  plat.  The  lots  on  Michigan  avenue  were 
sold  for  two  or  three,  or  perhaps  four  times  as  much  as  the 
other  lots,  because  they  fronted  upon  the  lake  and  that  wide 
street.      (Rec,  248,  443.) 

By  an  Act  of  the  legislature  approved  February  21,  1843, 
the  Governor  of  the  State  was  authorized  to  negotiate  a  loan 
for  the  completion  of  the  canal,  on  the  pledge  of  the  canal 
and  all  remaining  lands  and  lots  belonging  to  the  canal  fund. 
The  Act  provided  for  the  appointment  of  a  board  of  trustees, 
who  should  possess  all  the  powers  and  perform  all  the  duties- 
previously  conferred  upon  the  board  of  canal  commissioners. 
To  secure  the  payment  of  the  loan  a  grant  was  made  to  the 
board  of  trustees  by  the  tenth  section  in  the  following  terms: 
"  The  State  does  hereby  irrevocably  grant  to  the  said  board 
"  of  trustees  of  the  Illinois  and  Michigan  Canal  the  bed  of  the 
"  said  Illinois  and  Michigan  Canal,  and  the  land  over  which 
"  the  same  passes,  .  .  .  and  also  all  the  remaining  lands 
"  and  lots  belonging  to  the  said  canal  fund,  or  which  hereafter 
"  may  be  given,  granted  or  donated  by  the  General  Govern- 
"  ment  to  the  State  to  aid  in  the  construction  of  the  said  canal, 
"and  the  buildings  and  erections  belonging  to  the  State 
"  thereon  situated;  said  board  of  trustees  to  have,  hold,  pos- 
"  sess  and  enjoy  the  same  as  fully  and  as  absolutely  in  all 
"  respects  as  the  State  now  can  or  hereafter  could  do,  for  the 
"uses,  purposes  and  trusts  hereinafter  mentioned;  but  it  is  to 
"  be  understood  that  all  canal  lands  and  lots  heretofore  sold  by 
"  the  board  of  commissioners  upon  which  moneys  are  now  due 
"  or  mav  hereafter  become  due,  whether  the  said  lands  and 
"  lots  be  now  forfeited  or  relinquished,  or  hereafter  become 
"  forfeited  or  relinquished,  shall  be  exempt  from  the  aforesaid 
"  provisions  of  this  Act." 

The  Act  then  goes  on  to  authorize  the  board  of  trustees  to 
take  possession  of  the  granted  property,  and  to  proceed  to 
complete  the  canal.  Power  is  conferred  upon  the  trustees  to 
sell  the  canal  lands  and  apply  the  proceeds  to  the  payment  of 
the  securities  held  bv  the  subscribers  to  the  loan,  and  the  ex- 
penses  incident  to  the  execution  of  the  trust.  And  by  the 
nineteenth  section  it  was  provided,  that  "  whenever  the  trust 
"  created  by  this  Act  shall  have  been  fully  executed    and   per- 


&  14 

"  formed  by  the  said  trustees,  the  said  canal  and  the  canal 
"  property  that  may  then  remain  shall  revert  to  the  State,  and 
"  the  State  hereby  reserves  the  right  of  paying  off  the  bonds 
"  and  certificates  to  be  paid  to  the  said  trustees  and  the  inci- 
"  dental  expenses  paid  by  them  and  the  interest  thereon;  and 
"  the  said  trustees  shall  then  resign  the  said  canal  and  the  re- 
"  maining  canal  property  and  assets  to  the  State."  (Rec, 
599-606. ) 

By  a  supplemental  Act,  approved  March  1,  1845,  it  was 
provided,  that  after  the  completion  of  the  loan  the  Governor 
of  the  State  should  execute  and  deliver  under  the  seal  of  the 
State  a  deed  to  the  said  trustees  of  all  the  property  and  effects 
mentioned  in  the  tenth  section  of  the  Act  of  February  21, 
1843  "  which  said  conveyance  shall  include  the  lands  and  lots 
remaining  unsold  donated  by  the  United  States  to  the  State 
of  Illinois,  to  aid  in  the  completion  of  the  said  canal,  to  be 
held  in  trust  as  in  the  said  Act   stipulated."      (Rec,  606-7.) 

Pursuant  to  the  provisions  of  the  last  mentioned  Act  a  deed 
was  made  by  the  Governor  to  the  canal  trustees  June  26, 
1845,  in  which  the  Acts  of  1843  and  1845  were  recited  at 
length,  conveying  to  them  and  their  successors  in  trust  the  bed 
of  the  canal  and  the  land  over  which  the  same  passes,  with  all 
the  hereditaments  and  appurtenances  thereto  belonging,  "  and 
"  all  the  remaining  lands  and  lots  belonging  to  the  canal  fund 
"  or  which  hereafter  may  be  given,  granted  or  donated  by  the 
"  General  Government  to  the  State  to  aid  in  the  construction 
"  of  the  said  canal,  and  the  buildings  and  erections  belonging 
"  to  the  State  thereon  situated;  also  the  lands  and  lots 
"  remaining  unsold  donated  by  the  United  States  to  the 
"  State  of  Illinois  to  aid  in  the  completion  of  the  said 
"canal;  to  have,  hold,  possess  and  enjoy  the  premises  afore- 
"  said  to  them,  ...  as  trustees  of  the  Illinois  and 
"  Michigan  Canal  as  aforesaid,  and  their  successors  in  trust, 
"  as  in  the  above  recited  Acts  stipulated,  and  to  and  for  the 
"  uses  and  purposes  in  said  Acts  expressed  and  intended.  And 
"  so  to  have,  hold  and  enjoy  the  said  property,  with  the  rights 
"  of  controlling,  managing,  selling  and  disposing  of  the  same, 
"  and  subject  to  all  the  duties  and  obligations  as  they  are  set 
"  forth  in  the  said  Acts  of  the  General  Assembly,  until  from  the 
"proceeds  of  the  said  property,  and  the  revenues  of  the  sa  d 
"  canal,  after  it  shall  be  completed,  all  the  moneys  to  be  paid, 
"  and  trusts  performed  by  the  said  trustees,  as  specified  in  the 


i5 


O  i 


"  said  Acts,  shall  be  fully  paid,  performed,  satisfied  and  ex- 
tinguished, together  with  all  just  and  necessary  charges 
"  and  expenditures  incurred  and  to  be  incurred  in  carrying 
<l  on  the  work  and  business  of  the  said  trust."  (Rec,  264, 
266.) 

The  canal  debt  was  extinguished  in  1871;  and  pursuant  to 
an  Act  of  the  legislature  entitled  "  An  Act  to  settle  up  and  close 
the  trust  of  the  board  of  tiustees  of  the  Illinois  and  Michi- 
gan Canal,"  approved  April  22d  of  that  year  (Rec,  608-9), 
the  board  of  trustees  by  deed  dated  August  19,  187 1  released 
and  transferred  to  the  State  all  the  remaining  property  and 
assets  belonging  to  the  trust.      (Rec,  276-7.) 

By  an  Act  amendatory  of  the  charter  of  the  City  of  Chi- 
cago, approved  February  18,  1861,  it  was,  among  other  things, 
provided  as  follows: 

"  Sec.  64.  No  encroachment  shall  be  made  upon  the  land 
"  or  water  west  of  a  line  mentioned  in  the  second  section  of 
"an  ordinance  concerning  the  Illinois  Central  railroad  (which 
"line  is  '  not  less  than  four  hundred  feet  east  from  the  west 
"line  of  Michigan  Avenue,  and  parallel  thereto'),  by  any 
"railroad  company;  nor  shall  any  cars,  locomotives,  engines, 
"  machines,  or  other  things  belonging  to  any  railroad  or  trans- 
"  portation  company  be  permitted  to  occupy  the  same;  nor 
"  shall  any  cars  or  machinery  be  left  standing  upon  said  track 
"  fronting  any  part  of  Michigan  avenue;  nor  shall  the  city 
"council  ever  allow  any  encroachments  west  of  the  line  above 
"described.  And  any  person,  being  the  owner  of  or  interested 
"  in  any  lot  or  part  of  a  lot  fronting  on  Michigan  avenue, 
"  shall  have  the  right  to  enjoin  said  company,  and  all  other 
"  persons  and  corporations  from  any  violation  of  the  provisions 
"  of  this  section  or  of  said  ordinance,  and  by  bill  or  petition 
"  in  chancery,  in  his  or  their  own  name,  or  otherwise,  enforce 
"  the  ^provisions  of  said  ordinance,  and  of  this  section,  and  re- 
"  cover  such  damages  for  any  such  encroachment  or  viola- 
tion, as  the  court  shall  deem  just — the  State  of  Illinois,  bv 
"  its  canal  commissioners,  having  declared  that  the  public 
"  ground  east  of  said  lots  should  forever  remain  open  and 
"  vacant.  Neither  the  common  council  of  the  City  of  Chi- 
"  cago,  nor  any  other  authority,  shall  ever  have  the  power  to 
"  permit  encroachments  thereon,  without  the  consent  of  all  the 
"  persons  owning  lots  or  land  on  said  street  or  avenue." 
(Priv.  Laws  1861,  136;     Rec,  544-5.) 


4    >    jr:' 
■   . 


16 


On  the  revision  of  the  city  charter  in  1863,  the  same  provis- 
ion was  re-enacted,  with  this  amendment:  after  the  words, 
"  nor  shall  any  cars  or  machinery  be  left  standing  upon  said 
track  fronting  any  part  of  Michigan  avenue,  ';  the  words, 
"  south  of  Madison  street,"  were  inserted.  (Priv.  Laws  1863, 
96;  Rec,  547.) 

Fort  Dearborn  Addition  to  Chicago.  That  part  of  the 
public  ground  above  referred  to  north  of  the  center  line  of 
Madison  street  extended,  is  embraced  within  another  local  sub- 
division known  as  "  Fort  Dearborn  Addition  to  Chicago.  '" 
This  is  a  subdivision  made  in  1839  (tne  Act  °^  February  27, 
1833,  providing  for  the  recording  of  town  plats  being  then  still 
in  force ) ,  of  that  part  of  fractional  section  10  in  township  39  north, 
range  14  east  of  the  third  principal  meridian,  which  lies  on  the 
south  side  of  the  Chicago  river.  A  military  post  called  Fort 
Dearborn  was  established  on  this  tract  of  land  by  the  United 
States  in  1S04,  and  was  afterwards  occupied  by  the  troops  of 
the  United  States  until  1836  or  later.  On  the  first  of  October 
1824,  the  land  was  formally  reserved  from  sale,  for  military 
purposes,  by  the  Commissioner  of  the  General  Land  Office, 
upon  the  written  request  of  the  Secretary  of  War.  In  1839, 
the  land  being  no  longer  needed  for  military  purposes,  the  en- 
tire tract  was  subdivided  into  town  lots,  streets,  alleys  and  pub- 
lic giounds,  by  authority  of  the  Secretary  of  War  under  the 
direction  of  the  President  of  the  United  States.  (Rec,  281.) 
The  map  of  the  subdivision,  which  has  been  put  in  evidence, 
is  styled  "  Fort  Dearborn  Addition  to  Chicago.  '  (Rec, 
332,  1200.)  It  is  certified  by  the  county  surveyor,  and  was 
acknowledged  June  7,  1839,  before  a  justice  of  the  peace,  by 
an  agent  of  the  War  Department.  The  certificate  of  acknowl- 
edgment reads  as  follows: 

"  State  of  Illinois, 
"  County  of   Cook. 

"  Be  it  remembered  that  on  this  seventh  day  of  June  in  the 
"year  of  our  Lord  one  thousand  eight  hundred  and  thirty- 
"  nine,  before  me,  Henry  Brown,  a  justice  of  the  peace  in  and 
"  for  said  county,  came  Matthew  Birchard,  Solicitor  of  the 
"  General  Land  Office  and  agent  of  the  War  Department  of 
"  the  United  States,  to  me  personally  known,  and  exhibited  a 
"  power  of  attorney  from  the  Secretary  of  the  Department  of 
"  War  of  the  United  States,  executed  officially  by  said  Secre- 
"  tary  under  the  seal  of  said  Department  by  direction    of  the 


17 


V  President  of  the  United  States,  authorizing  him,  the  said 
*«  Matthew  Birchard,  to  cause  to  be  surveyed,  platted,  duly 
c<  acknowledged  and  recorded  as  an  addition  to  the  town  of 
'*  Chicago,  Illinois,  the  south-west  fractional  quarter  of  Section 
■'  10,  heretofore  reserved  for  military  purposes  and  the  site  of 
''Fort  Dearborn.^and  the  same  to  sell,  &c,  and  acknowledged 
''the  foregoing  map  to  be  the  map  and  plat  of  the  Fort  Dear- 
"  born  Addition  to  the  town  of  Chicago,  and  that  the  United 
"States  of  America  are  the  sole  proprietors  and  owners  of  the 
"  same. 

u  Henry  Brown,  Justice  of  the  Peace.  " 

The  map  was  filed  for  record  in  the  recorder's  office  of 
the  county,  June  7,  1839.  (Rec,  430.)  All  the  lots  in  the 
subdivision  were  afterwards  sold  by  the  Government  as 
shown  upon  the  plat  (Rec,  281);  but  a  portion  of 1  the 
property,  consisting  of  block  1,  lots  8,  9  and  10,  in  block  2, 
lots  1,  2,  3,  5,  6  and  9  in  block  4,  and  lots  1,  2,  3,  4  and  5  in 
block  5»  (including  the  adjacent  streets  between  them),  was 
reserved  from  sale  until  after  the  decision  of  the  Supreme 
Court  of  the  United  States,  at  the  January  term  1849,  in  the 
case  of  the  United  States  v.  the  City  of  Chicago,  7  How. ,~  185. 
The  reserved  lots  were  then  sold  and  Michigan  avenue  was 
extended  through  to  River  street.      (Rec,  430.) 

It  will  be  seen  on  looking  at  the  plat  that  Lake  Michigan  is 
the  eastern  boundary  of  the  subdivision.  The  southern 
boundary  is  Madison  street.  Between  Randolph  street  and 
Madison  street  a  parcel  of  ground  irregular  in  shape,  lying 
east  of  blocks  12  and  15  and  between  them  and  the  lake,  is 
delineated  on  the  plat,  across  which  are  written  the  words: 
"Public  ground  forever  to  remain  vacant  of  buildings";  and  in 
an  explanatory  statement  written  on  the  margin  of  the  plat 
and  signed  by  Mr.  Birchard  as  agent  and  attorney  for  the 
Secretary  of  War  there  is  this  declaration:  "The  public 
ground  between  Randolph  and  Madison  streets  and  fronting 
upon  Lake  Michigan,  is  not  to  be  occupied  with  buildings  of 
any  description." 

Mr.  Birchard's  instructions  are  set  out  at  length  in  a  decis- 
ion made  by  the  Hon.  Carl  Schurz,  Secretary  of  the  Interior, 
February  28,  1879,  m  a  ^anc^  case  Dti°re  him  on  appeal  from 
the  Commissioner  of  the  General  Land  Office,  which  has 
been  put  in  evidence.  (Rec,  338 — 9.)  It  appears  that  Mr. 
Birchard  had    express  authority  to  make  and  record  the  plat, 


18 

and  to  make  sales  of  the  lots,  reserving,  however,  such 
quantity  of  land  as  he  might  think  it  necessary  to  retain  for 
the  use  of  the  light-house.  The  sales  made  were  subse- 
quently confirmed,  and  the  purchasers  in  due  time  received 
their  patents  for  the  lots  purchased.      (Rec.  340.) 

The  authority  of  the  Secretary  of  War  to  cause  the  proper- 
ty to  be  sold  is  not  questioned.  The  Act  of  Congress,  ap- 
proved March  3,  1819,  entitled  "An  act  authorizing  the  sale 
of  certain  military  sites,"  provides  as  follows: 

"  That  the  Secretary  of  War  be,  and  he  is  hereby  author- 
"  ized,  under  the  direction  of  the  President  of  the  United  States, 
"  to  cause  to  be  sold  such  military  sites  belonging  to  the  United 
"  States  as  may  have  been  found  or  become  useless  for  military 
"  purposes.  And  the  Secretary  of  War  is  hereby  authorized,  on 
"  the  payment  of  the  consideration  agreed  for  into  the  treasury  of 
"  the  United  States,  to  make,  execute  and  deliver  all  needful  in- 
"  struments,  conveying  and  transferring  the  same  in  fee ;  and  the 
"  jurisdiction  which  had  been  specially  ceded  for  military  pur- 
"  poses  to  the  United  States  over  such  site  or  sites  shall  there- 
"  after,  cease."     (3  U.  S.  Stat,  at  Large,  520;  Rec,  551.) 

No  attempt  has  ever  been  made  by  the  United  States 
to  disturb  the  titles  to  lots  in  Fort  Dearborn  Addition,  derived 
through  deeds  made  to  purchasers  by  the  Secretary  of  War. 
On  the  contrary,  the  survey  and  plat  of  the  subdivision  has 
been  recognized  as  valid  by  an  Act  of  Congress,  in  which  also 
certain  lands  in  the  subdivision  which  had  been  conveyed  by 
the  Secretary  of  War  to  the  Illinois  Central  Railroad  Com- 
pany, are  referred  to  as  "  lands  granted  by  the  United 
States."  ("  Act  for  the  relief  of  Jean  Baptiste  Beaubien," 
approved  August  1,  1854.  IO  U.  S.  Stat,  at  Large,  805; 
Rec,  550-1.) 

The  evidence  shows  that  the  land  marked  'l  Public  Ground" 
on  the  plat,  lying  between  Randolph  and  Madison  streets, 
has  been  devoted  to  public  use  since  the  making  and  re- 
cording of  the  plat  (Rec,  246-7,  269) ;  and  that  between  1840 
and  1852  considerable  sums  were  expended  by  the  city  in  pro- 
tecting it  from  the  lake.  (Rec,  268-272.)  In  1847  an 
ordinance  was  passed  by  the  common  council  providing  that 
the  public  ground  east  of  Michigan  avenue  between  Randolph 
street  and  Park  Row  should  thereafter  be  known  as  Lake 
Park  (Rec,  269);  and  it  also  appears  that  between   1866  and 


So 

19 

1886  the  sum  of  $174,065.51  was  expended  by  the  city 
for  fencing  the  park  and  making  other  improvements  there- 
on.     (Rec,  275-6). 

When  the  railroad  was  located  in  1852  nearly  all  the  land 
contiguous  to  the  lake  between  Randolph  street  and  the  river 
was  owned  by  private  individuals.  A  small  parcel  adjacent  to 
the  river  still  belonged  to  the  United  States.  This  parcel,  em- 
bracing parts  of  lots  1  to  5,  block  5,  Fort  Dearborn  Addition, 
was  purchased  by  the  Railroad  Company.  The  deed  executed 
by  the  Secretary  of  War,  under  date  of  October  14,  1852,  con- 
veying the  property  to  the  company  "  together  with  all  the 
accretions  made  or  to  be  made  by  said  lake  and  river  in  front 
of  the  land  hereby  conveyed,  and  all  other  rights  and  priv- 
ileges appertaining  to  the  United  States  as  owners  of  said 
land,"  was  put  in  evidence.      (Rec,  300,  430.) 

The  title  to  all  the  remaining  lots  on  the  shore  between  Ran- 
dolph street  and  the  river  was  acquired  by  the  Railroad  Com- 
pany at  about  the  same  time.  (Rec,  testimony  of  J.  Y.  Scam- 
mon,  291-2.)  The  original  deeds  conveying  the  propertv  to 
the  Company  were  put  in  evidence,  and  an  abstract  of  them, 
by  consent  of  counsel,  was  made  a  part  of  the  record.  (Rec, 
301-308.)  These  conveyances,  it  is  proved,  cover  all  the  lots 
bordering  the  lake  between  Randolph  street  and  the  river. 
(Rec,  428.) 

It  also  appears  that  the  Railroad  Company  acquired  title  to 
all  the  land  on  the  lake  shore  between  Park  Row  and  Sixteenth 
street.  Part  of  this  land  was  acquired  in  the  first  instance  by 
condemnation,  but  deeds  of  the  lands  condemned  were  after- 
wards procured,  with  the  excep  ion  of  one  small  parcel.  ( Rec  , 
308-331,  429.) 

The  Railroad  Company  having  purchased  all  the  lots 
bounded  by  the  lake,  between  Randolph  street  and  the  river, 
it  gradually  pushed  its  works  out  into  the  shallow  water  in 
front  of  the  lots  until  they  reached  the  exterior  line  specified 
in  the  third  section  of  the  ordinance  of  June  14,  1852,  before 
referred  to,  and  here  the  station  grounds  of  the  company  were 
located. 

By  an  ordinance  passed  by  the  common  council  of  Chicago 
September  10,  1855,  permission  was  granted  to  the  Railroad 
Company  to  curve  the  tracks  leading  to  its  passenger  station 
westwardly  of  the  line  fixed  by  the  ordinance  of  1852  (  a  line 


20 

400  feet  east  of  the  west  line  of  Michigan  Avenue),  '-so  as 
"  to  cross  said  line  at  a  point  not  more  than  two  hundred  feet 
"  south  of  Randolph  street,  extending  and  curving  said  tracks 
"north-westerly  as  they  approach  the  depof,  and  crossing  the 
"  north  line  of  Randolph  street  extended  at  a  point  not  more 
"than  one  hundred  feet  west  of  the  line  fixed  by  the  ordinance 
"aforesaid."      (Rec,  296,  631.) 

The  ordinance  was  accepted  by  the  Company,  September 
1 1,  1855  (Rec,  633) ;  and  the  small  triangular  piece  of  ground 
therein  described  has  since  been  occupied  by  its  tracks.  It 
was  needed  to  obtain  convenient  access  to  the  passenger  sta- 
tion. This  appears  from  the  preamble  prefixed  to  the  ordi- 
nance; also  from  the  testimony.  (Rec,  testimony  of  E.  T. 
Jeffery,  369.) 

In  consideration  of  the  permission  thus  granted,  the  Rail- 
road Company  was  required  to  lay  out  upon  its  own  land  a 
street  fifty  feet  wide,  west  of  and  alongside  its  passenger 
house,  extending  from  Water  street  to  Randolph  street.  It  is 
proved  that  this  street  was  laid  out  and  dedicated  to  public 
use  by  the  Company  in  conformity  to  that  requirement  (Rec, 
testimony  of  L.  P.  Morehouse,  348;  E.  T.  Jeffery,  372.) 

By  a  subsequent  ordinance,  passed  September  15,  1856,  per- 
mission was  granted  to  the  Company  to  enter  upon  and  use  in 
perpetuity  an  additional  piece  of  ground  at  the  north  end  and 
on  the  east  side  of  the  strip  three  hundred  feet  wide  described 
in  the  ordinance  of  1852,  in  order  to  afford  convenient  means 
of  approaching  and  using  a  part  of  the  station  grounds  be- 
tween Randolph  street  and  the  river.  (Rec,  296,  633-4.) 
It  appears  from  the  recitals  in  the  ordinance  that  the  original 
strip  was  too  narrow  for  this  purpose;  and  it  is  shown  by  the 
testimony  that  the  additional  area  which  the  Company  was 
thus  permitted  to  occupy  is  absolutely  essential  to  the  con- 
venient operation  of  its  railroad.  (Rec,  testimony  of  E.  T. 
Jeffery,  368.) 

The  two  parcels  of  ground  last  referred  to  were  covered  by 
water  in  1852  when  the  railroad  was  laid  out  (Rec,  283) ; 
and  it  appears  from  the  plat  of  Fort  Dearborn  Addition  that 
they  were  under  water  in  1839  wnen  that  plat  was  made  and 
recorded.  (Rec,  1200.)  It  is  stated  in  the  information  that 
these  grounds  are  used  by  the  Railroad  Company  "  for  the 
"  purpose  of  operating  its  said  railroad  within  the  limits  of  said 
"city."   (Rec,  135.) 


o< 

21 

On  the  16th  of  April,  1869,  an  Act  was  passed  by  the 
Legislature  of  Illinois,  entitled  "  An  Act  in  relation  to  a  portion 
of  the  submerged  lands  and  Lake  Park  Grounds  lying  on 
and  adjacent  to  the  shore  of  Lake  Michigan,  on  the  eastern 
frontage  of  the  City  of  Chicago." 

The  third  section  of  this   Act  provides  as  follows : 

"  Section  3.  The  right  of  the  Illinois  Central  Railroad  Com- 
"  pany,  under  the  grant  from  the  State  in  its  charter,  which 
"  said  grant  constitutes  a  part  of  the  consideration  for  which  the 
"  said  company  pays  to  the  State  at  least  seven  per  cent,  of  its 
"  gross  earnings,  and  under  and  by  virtue  of  its  appropriation, 
"  occupancy,  use  and  control,  and  the  riparian  ownership 
"  incident  to  such  grant,  appropriation,  occupancy,  use  and 
"  control  in  and  to  the  lands  submerged  or  otherwise  lying 
"  east  of  the  said  line  running  parallel  with  and  four 
•'  hundred  feet  east  of  the  west  line  of  Michigan  avenue, 
"  in  fractional  sections  ten  (10)  and  fifteen  (15),  township  and 
"  range  as  aforesaid,  is  hereby  confirmed;  and  all  the  right 
"  and  title  of  the  State  of  Illinois,  in  and  to  the  submerged 
"  lands  constituting  the  bed  of  Lake  Michigan,  and  lying  east 
"  of  the  tracks  and  breakwater  of  the  Illinois  Central  Rail- 
"  road  Company,  for  the  distance  of  one  mile,  and  between 
"  the  south  line  of  the  south  pier  extended*  eastwardly  and  a 
"  line  extended  eastward  from  the  south  line  of  lot  twenty-one, 
"  south  of  and  near  to  the  round-house  and  machine  shops  of 
"  said  company,  in  the  south  division  of  the  said  city  of  Chi- 
"  cago,  are  hereby  granted,  in  fee,  to  the  said  Illinois  Central 
"  Railroad  Company,  its  successors  and  assigns:  Provided, 
"  however,  that  the  fee  to  said  lands  shall  be  held  by  said  com- 
"  pany  in  perpetuity,  and  that  the  said  company  shall  not  have 
"  power  to  grant,  sell  or  convey  the  fee  to  the  same,  and  that 
"  all  gross  receipts  from  use,  profits,  leases  or  otherwise  of  said 
"  lands  or  the  improvements  thereon,  or  that  may  hereafter  be 
"  made  thereon,  shall  form  a  part  of  the  gross  proceeds,  re- 
"  ceipts  and  income  of  the  said  Illinois  Central  Railroad  Com- 
"  pany  upon  which  said  company  shall  forever  pay  into  the 
"  state  treasury,  semi-annually,  the  per  centum  provided  for  in 
"  its  charter,  in  accordance  with  the  requirements  of  said 
"charter:  And  ^provided,  also,  that  nothing  herein  contained 
"  shall  authorize  obstructions  to  the  Chicago  harbor,  or  impair 
"  the  public  right  of  navigation,  nor  shall  this  Act  be  construed 
"  to  exempt  the  Illinois  Central  Railroad  Company,  its  lessees 


22 


L 


"  or  assigns,  from  any  Act  of  the  general  assembly  which 
"  may  be  hereafter  passed  regulating  the  rates  of  wharfage 
"  and  dockage  to  be  charged  in  said  harbor:  And  -provided, 
"further,  that  any  of  the  lands  hereby  granted  to  the  Illinois 
"  Central  Railroad  Company,  and  the  improvements  now  or 
"  which  may  hereafter  be  on  the  same,  which  shall  hereafter  be 
"  leased  by  said  Illinois  Central  Railroad  Company  to  any  per- 
"  son  or  corporation,  or  which  may  hereafter  be  occupied  by  any 
"  person  or  corporation  other  than  said  Illinois  Central  Rail- 
"  road  Company,  shall  not,  during  the  continuance  of  such 
"  leasehold  estate  or  of  such  occupancy,  be  exempt  from  mu- 
"  nicipal  or  other  taxation."   (Laws  1869,  245-8;  Rec,  634-7.) 

By  this  Act,  the  right  of  the  Railroad  Company  to  all  the 
ands  it  had  appropriated  and  occupied,  lying  east  of  a  line 
^Irawn  parallel  to  and  four  hundred  feet  east  of  the  west  line  of 
Michigan  avenue  in  fractional  sections  ten  and  fifteen,  was  con- 
firmed; and  a  further  grant  was  made  to  the  Company  of  the 
submerged  lands  lying  east  of  its  tracks  and  breakwater  within 
the  distance  of  one  mile  therefrom,  between  the  south  line  of 
the  south  pier  extended  eastwardly  and  a  line  extended  east- 
ward from  the  south  line  of  lot  twenty-one. 

The  line  of  the  Company's  breakwater  at  that  time,  and  the 
situation  of  lot  21,  are  shown  upon  one  of  the  maps  introduced 
in  evidence,  known  as  the  "  Morehouse  Map,"  (Rec,  346; 
347,  7,207),  a  copy  of  which  on  a  reduced  scale  is  here  inserted. 
The  map  also  gives  an  accurate  representation  of  the  Railroad 
Company's  works  along  the  shore  of  the  lake  between  the  river 
and  Sixfeenth  street.  The  Railroad  Company  or  its  lessees 
had  possession,  at  the  time  of  the  passage  of  the  Act,  of  all  the 
land  north  of  Randolph  street  between  the  east  line  of  Central 
avenue  and  the  breakwater  indicated  by  the  exterior  red  line 
on  the  map,  including  the  slip  and  pier  there  marked  "C"; 
and  of  all  the  land  below  Randolph  street,  as  far  south  as  16th 
street,  between  the  breakwater  and  the  west  line  of  the  rail- 
way.     (Rec,  347,  348,  353,  354.) 

It  will  be  noticed  th.it  the  Company  had  not  occupied  the 
whole  of  the  strip  300  feet  wide  designated  for  its  use  by  the 
ordinance  of  June  14,  1852.  From  a  point  about  midway  be- 
tween Washington  street  and  Madison  street  to  Park  Row, 
the  east  100  feet  of  the  strip  was  outside  the  breakwater. 

There  were  two  further  grants  made  by  the  State  in  the 
Act  of  April  16,  1869:  One  to    the  City  of  Chicago,  of  all  the 


*j?l 


22 

"  or  assigns,  from  any  Act  of  the  general  assembly  which 
"  may  be  hereafter  passed  regulating  the  rates  of  wharfage 
"  and  dockage  to  be  charged  in  said  harbor:  And  -provided, 
"further,  that  any  of  the  lands  hereby  granted  to  the  Illinois 
"  Central  Railroad  Company,  and  the  improvements  now  or 
"  which  may  hereafter  be  on  the  same,  which  shall  hereafter  be 
"  leased  by  said  Illinois  Central  Railroad  Company  to  any  per- 
"  son  or  corporation,  or  which  may  hereafter  be  occupied  by  any 
"  person  or  corporation  other  than  said  Illinois  Central  Rail- 
"  road  Company,  shall  not,  during  the  continuance  of  such 
"  leasehold  estate  or  of  such  occupancy,  be  exempt  from  mu- 
"  nicipal  or  other  taxation."   (Laws  1869,  245-8;  Rec,  634-7.) 

By  this  Act,  the  right  of  the  Railroad  Company  to  all  the 
Lands  it  had  appropriated  and  occupied,  lying  east  of  a  line 
£lrawn  parallel  to  and  four  hundred  feet  east  of  the  west  line  of 
Michigan  avenue  in  fractional  sections  ten  and  fifteen,  was  con- 
firmed; and  a  further  grant  was  made  to  the  Company  of  the 
submerged  lands  lying  east  of  its  tracks  and  breakwater  within 
the  distance  of  one  mile  therefrom,  between  the  south  line  of 
the  south  pier  extended  eastwardly  and  a  line  extended  east- 
ward from  the  south  line  of  lot  twenty-one. 

The  line  of  the  Company's  breakwater  at  that  time,  and  the 
situation  of  lot  21,  are  shown  upon  one  of  the  maps  introduced 
in  evidence,  known  as  the  "  Morehouse  Map,"  (Rec,  346; 
347,  1,201),  a  copy  of  which  on  a  reduced  scale  is  here  inserted. 
The  map  also  gives  an  accurate  representation  of  the  Railroad 
Company's  works  along  the  shore  of  the  lake  between  the  river 
and  Sixteenth  street.  The  Railroad  Company  or  its  lessees 
had  possession,  at  the  time  of  the  passage  of  the  Act,  of  all  the 
land  north  of  Randolph  street  between  the  east  line  of  Central 
avenue  and  the  breakwater  indicated  by  the  exterior  red  line 
on  the  map,  including  the  slip  and  pier  there  marked  ;'C"; 
and  of  all  the  land  below  Randolph  street,  as  far  south  as  16th 
street,  between  the  breakwater  and  the  west  line  of  the  rail- 
way.     (Rec,  347,  348,  353,  354.) 

It  will  be  noticed  that  the  Company  had  not  occupied  the 
whole  of  the  strip  300  feet  wide  designated  for  its  use  by  the 
ordinance  of  June  14,  1852.  From  a  point  about  midway  be- 
tween Washington  street  and  Madison  street  to  Park  Row, 
the  east  100  feet  of  the  strip  was  outside  the  breakwater. 

There  were  two  further  grants  made  by  the  State  in  the 
Act  of  April  16,  1869:  One  to    the  City  of  Chicago,  of  all  the 


i   Mfi"  f 


*> 


3 


*  t  c 


23 

right,  title  and  interest  of  the  State  in  and  to  that  part  of 
the  public  ground  between  Michigan  avenue  and  the  railroad 
which  lies  between  Park  Row  and  the  south  line  of  Monroe 
street;  the  other  to  the  Illinois  Central,  Chicago,  Burlington 
and  Quincy,  and  Michigan  Central  Railroad  Companies, 
jointly,  of  all  the  right  and  title  of  the  State  in  and  to  that  part 
of  the  public  ground  east  of  Michigan  avenue  lying  between 
the  south  line  of  Monroe  street  and  the  south  line  of  Randolph 
street,  for  the  erection  thereon  of  a  passenger  depot.  In  con- 
sideration of  the  latter  grant  the  three  railroad  companies 
were  required  to  pay  $800,000  to  the  City  of  Chicago — -$200,- 
000  within  three  months  from  the  passage  of  the  Act,  and  three 
similar  installments  within  six,  nine  and  twelve  months  from 
the  same  date.  The  common  council  was  empowered  to  quit- 
claim and  release  to  those  companies  any  claim  the  city  might 
have  on  the  land  by  reason  of  any  expenditures  and  improve- 
ments made  thereon^  or  otherwise,  and  in  case  of  neglect  or 
refusal  to  make  such  quitclaim  and  release  within  four  months 
from  the  passage  of  the  Act  the  gran'ees  were  to  be  dis- 
charged from  all  obligation  to  pay  the  balance  of  the  $800,- 
000  then  remaining  unpaid. 

No  question  arises  in  this  case  in  respect  of  either  of  the 
grants  last  mentioned.  They  have,  therefore,  at  most,  only  a 
remote,  incidental  bearing  upon  the  matters  here  in  contro- 
versy. Proof  has  been  made,  however,  of  the  fact,  that  the 
three  railroad  companies  interested  in  the  grant  made  of  the 
land  north  of  Monroe  street  tendered  the  first  installment  of 
the  $800,000  they  were  required  to  pay  the  city,  to  the  city 
comptroller  on  the  12th  day  of  July,  1869.  The  comptroller 
accepted  the  money  and  reported  the  payment  to  the  common 
council,  stating  in  his  report  that,  as  he  had  received  no  in- 
structions from  the  council  on  the  subject,  he  had  taken  the 
money  upon  the  condition  that  no  rights  of  the  city  should  be 
thereby  waived  or  its  interests  in  any  manner  prejudiced.  It 
was  furthei  stated  in  his  report,  that  he  had  not  placed  the 
money  in  the  city  treasury,  but  in  a  bank  on  special  deposit, 
and  that  he  awraited  the  direction  and  action  of  the  council  in 
the  premises.  The  comptroller's  communication  was  referred 
to  a  committee,  and  no  definite  action  was  taken  by  the  coun- 
cil on  the  subject  until  June  13,  1870,  when  a  resolution  was 
passed  that  the  city  would  not  recognize  the  act  of  the  comp- 
troller in  receiving  the  money  as  binding  upon  the  city,  nor 
"  receive  any  money  from  the  railroad  corporations  under  said 


"  Act  of  the  General  Assembly  until  forced  to  do  so  by  the 
"  courts."  No  conveyance  or  release  was  made  by  the  city 
to  the  three  railroad  companies,  or  either  of  them,  of  its  inter- 
est in  the  property;  and  no  further  tender  of  money  was  made 
by  the  railroad  companies  to  the  city.  The  comptroller,  at 
the  expiration  of  his  term  of  office,  did  not  turn  over  the  $200,- 
000  to  his  successor,  but  kept  it  deposited  in  a  bank  to  his 
own  individual  credit  until  1874,  or  later,  when  on  the  appli- 
cation of  the  railroad  companies  the  money  was  returned  to 
them.      (Rec,  522-532.) 

The  grants  made  to  the  Illinois  Central  Railroad  Company 
by  the  Act  of  April  16,  1869,  were  formally  accepted  by  the 
Company  on  the  6th  day  of  July,  1870.  At  a  meeting  of  its 
board  of  directors  held  on  that  day  in  the  City  of  New  York, 
the  following  resolution  was  unanimously  adopted: 

"  Resolved,  That  this  company  accepts  the  grants  under  the 
"  Act  of  the  Legislature  of  Illinois  at  its  last  session,  and  that 
"  the  president  give  notice  thereof  to  the  State,  and  that  the 
"  company  has  commenced  work  upon  the  shore  of  the  lake 
"  at  Chicago,  under  the  grants  referred  to." 

On  the  17th  of  November  1870,  the  following  letter  was 
sent  by  the  president  of  the  company  to  the  Secretary  of 
State : 

"  Chicago,  November  17,  1870. 
"  Hon.  Edward  Rummel,  Secretary  of  the  State  of  Illinois, 

"  Springfield,  Illinois. 

"Sir:  At  a  meeting  of  the  board  of  directors  of  the  Illinois 
"  Central  Railroad  Company  held  at  the  company's  office  in 
"New  York  the  6th  day  of  July  1870,  it  was  resolved  that 
"  this  company  accepts  the  grants  under  the  Act  of  the  Legis- 
lature of  Illinois  at  its  last  session,  and  that  the  president  give 
"  notice  thereof  to  the  State,  and  that  the  company  has  com- 
"  menced  work  upon  the  shore  of  the  lake  at  Chicago  under 
"  the  grants  referred  to. 

"  In  accordance  with  the  above  resolution  I  hereby  give  you 
"  notice  that  this  company  accepts  the  grants  above  referred 
"  to  and  more  particularly  mentioned  and  described  in  an  Act 
"in  force  April  16,  A.  D.  1869,  and  entitled  'An  Act  in 
" '  relation  to  a  portion  of  the  submerged  lands  and  Lake 
"  '  Park  grounds  lying  on  and  adjacent  to  the  shore  of  Lake 
"  «  Michigan,  on  the  eastern  frontage  of  the  city  of  Chicago '. 


25 


*>i 


"I  also  give  you  notice  that  this  company  has  commenced 
"  work  on  the  improvement  of  said  lake  shore. 

"  You  will  please  regard  the  above  as  an  acceptance  by  this 
"  company  of  the  above  mentioned  law,  and  it  is  desired  by 
"said  company  that  said  acceptance  shall  remain  permanently 
"  on  file  and  of  record  in  your  office. 

"  Please  acknowledge  receipt  hereof,  and  oblige, 

"  Yours  very  truly, 

"John  M.  Douglas, 

"  President" 

The  receipt  of  the  letter  was  acknowledged  by  the  Secre- 
tary of  State  on  the  18th  of  the  same  month,  by  an  official 
communication,  as  follows: 

"  State  of  Illinois,  Secretary's  Office. 
Springfield,  Nov.  18,  1870. 

"  Hon.  John  M.  Douglas,  Pres.  III.  Central  R.  R.  Co.,  Chi- 
"  cago,  III. 

"  Dear  Sir:  Yours  of  the  17th  inst.,  being  a  notice  of  the 
"  acceptance  by  the  Illinois  Central  Railroad  Company  of  the 
"  grants  under  an  Act  of  the  legislature 'of  Illinois,  in  force 
"  April  16,  1869,  was  this  day  received  and  filed,  and  duly 
"  recorded  in  the  records  of  this  office. 

"  Very  respectfully, 

"  Edward  Rummel, 

"  Secretary  of  State." 

At  the  next  annual  meeting  of  the  stockholders  of  the  Com- 
pany, held  at  Chicago  on  the  31st  of  May  187 1,  the  following 
action  was  taken: 

"  The  minutes  of  the  meetings  of  the  board  of  directors 
"  held  since  the  last  annual  meeting  of  the  shareholders  [held 
"  at  Chicago  on  the  25th  of  May  1870],  were  submitted,  and 
"  the  following  resolution  adopted: 

"  Resolved,  That  the  acts  and  doings,  resolutions  and  votes 
"  of  the  board  of  directors,  all  and  singular,  are  hereby  ratified, 
"approved  and  confirmed."      (Rec,  297-300,  638.) 

The  Act  of  April  16,  1869,  was  passed  before  any  provision 
had  been  made  by  Congress  for  the  construction  of  the  outer 
harbor;    but  by  an  act  of  Congress  approved   July  11,   1S70, 


26 

an  appropriation  of  $100,000  was  made  "for  enlargement  of 
harbor  facilities  at  Chicago,  Illinois,  according  to  the  plans  of 
the  engineering  department,  and  for  a  harbor  of  refuge, 
$50,000" — "to  be  expended  undtr  the  direction  and  superin- 
tendence of  the  Secretary  of  War,  according  to  such  plans  as 
shall  be  by  him  first  selected  and  approved."  (16  U.  S.  Stat, 
at  Large,  223,  226.) 

In  May  1869,  immediately  after  the  passage  of  the  Act  of 
April  1 6th  of  that  year,  and  more  than  twelve  months  before 
the  above  mentioned  appropriation  was  made  by  Congress, 
the  Illinois  Central  Railroad  Company  caused  a  plan  to  be  pre- 
pared for  the  construction  of  piers  or  wharves  in  front  of  its 
works  between  the  mouth  of  the  river  and  the  north  line  of 
lot  21.  A  series  of  wharves  with  intervening  slips  was  con- 
templated, to  be  extended  into  the  lake  10  the  distance  of  2420 
feet  from  the  line  of  the  shore  between  Madison  street  and 
Park  Row.  The  wharves  were  intended  to  be  600  feet  wic'e, 
and  the  slips  between  them  150  ieet.  The  plan  also  embraced 
the  construction  of  a  breakwater  in  front  of  the  wharves,  at  a 
distance  beyond  them  of  400  feet.  The  drawing  made  at  the 
time  showing  the  general  plan  of  the  proposed  wharves  has 
been  put ,in  evidence  (Record,  350,  1202).  The  probable 
cost  of  the  whole  work  is  estimated  at  about  $6,500,000. 
(Rec,  440-1.) 

The  plan,  as  a  whole,  did  not  meet  with  the  approval  of  the 
Government,  and  in  consequence  of  its  action  only  a  compara- 
tively small  part  of  the  plan  was  carried  into  execution. 
(Rec,  350-1.)  Work  was  commenced  upon  one  of  the  pro- 
posed wharves  adjacent  to  the  river,  early  in  the  autumn  of 
1869  apparently,  but  the  work  was  interrupted  on  the  3rd  of 
July  1871  by  an  injunction  granted  by  the  circuit  court  of  the 
United  States,  upon  an  information  filed  by  the  United  States 
attorney  for  the  Northern  District  of  Illinois.  The  substantial 
ground  of  complaint  was,  that  an  appropriation  had  been  made 
by  Congress  and  plans  had  been  prepared  by  the  engineering 
department  of  the  United  States  for  the  construction  of  an 
outer  harbor,  and  that  the  works  contemplated  by  the  Rail- 
road Company  would  interfere  with  those  plans  and  obstruct 
navigation.  (Rec,  299,  638  -  640.)  A  preliminary  in- 
junction was  granted,  but  the  suit  never  came  to  a  final 
hearing. 

On  the  3d  of   August    1871  a  board  of  engineer  officers  ap- 


'  ?  { 

27 

pointed  by  the  Secretary  of  War  was  directed  to  assemble  in 
Chicago  on  the  6th  of  that  month  or  as  soon  thereafter  as 
practicable,  to  "  take  into  consideration  the  plans  submitted  by 
"  the  Illinois  Central  Railroad  Company  for  docks  or  wharves 
"  in  the  basin  now  (then)  being  formed  by  the  construction  of 
"  the  United  States  breakwater,  to  report  their  views  thereon, 
"  and  to  establish  the  limiting  lines  for  such  constructions  in 
"  that  basin,  reference  being  had  to  the  interests  of  commerce 
"  and  navigation."     (Rec,  642  -3.) 

The  report  of  the  board  was  transmitted  to  the  Sec- 
retary September  29,  187 1,  in  which  it  was  recommended 
that  a  line  be  established  in  the  harbor  beyond  which  no 
wharves  or  other  structures  should  extend.  The  limit  sug- 
gested by  the  board  was  a  line  parallel  to  the  Government 
breakwater,  1,200  feet  west  of  it  on  the  north  side  of  Ran- 
dolph street,  and  2,000  feet  west  of  it  on  the  south  side  of  that 
street. 

The  plan  of  wharves  submitted  by  the  Illinois  Central  Rail- 
road Company  was  deemed  in  part  objectionable,  because  the 
wharves  proposed  to  be  built  south  of  Randolph  street  were 
designed  to  extend  800  feet  beyond  the  limit  recommended, 
and  also  because  the  spaces  between  the  slips  were  too  wide — 
the  room  for  vessels  being  thereby  unnecessarily  diminished. 
The  board  was  also  of  opinion  that,  as  the  question  of  owner- 
ship of  the  land  on  the  shore  south  of  Randolph  steet  was  in 
dispute,  no  piers  should  be  allowed  to  be  built  there  until  the 
controversy  should  be  settled.  North  of  Randolph  street  there 
was  no  dispute  as  to  the  ownership  of  the  Illinois  Central  Rail- 
road Company,  nor  any  opposition  to  building  wharves  there; 
but  south  of  that  street  there  were  strong  objections  on  the 
part  of  the  city  authorities  and  others  whose  interests  were 
affected.  So  much  of  the  plan  submitted  by  the  Railroad 
Company  as  related  to  wharves  north  of  Randolph  street  was 
approved;  but  the  board  recommended  that  the  construction 
of  wharves  south  of  Randolph  street  should  not  be  authorized 
until  all  questions  of  right  along  the  lake  shore  had  been  dis- 
posed of,  nor  until  the  plans  for  them  should  be  approved  by 
the  Secretary  of   War.      (Rec,  642-646.) 

The  report  was  approved  by  the  Secretary  of  War  October 
4,  187 1  (Rec,  642),  and  on  the  16th  of  January  1872  an 
agreement  was  made  for  the  dismissal  or  suspension  of  the 
suit    which  had  been  commenced  by  the  United  States  district 


**o 


28 

attorney  in  July  previous.  On  that  day  a  stipulation  was  filed 
setting  forth  that  the  matters  presented  in  the  information  re- 
lating to  the  construction  of  docks  and  wharves  in  the  outer 
harbor,  formed  by  the  breakwater  then  in  process  of  erection 
by  the  Government  of  the  United  States,  had  been  referred 
to  the  War  Department,  and  had  been  considered  and  reported 
upon  by  engineer  officers  appointed  by  the  Secretary  of  War 
for  that  purpose;  that  the  harbor  lines  limiting  the  construc- 
tion of  docks  and  wharves  in  said  outer  harbor,  as  recom- 
mended by  the  engineer  officers,  had  been  approved  by  the 
Secretary  of  War,  and  the  lines  so  established  fixed  as  the 
lines  to  which  docks  and  wharves  might  be  extended  by  par- 
ties entitled  to  construct  them.  The  stipulation  then  concludes 
as  follows: 

"  And  the  said  defendant  being  desirous  of  proceeding  with 
"  the  construction  of  docks  and  wharves  within  said  outer  har- 
u  bor,  between  the  pier  aforesaid  on  the  south  side  of  the  en- 
"  trance  to  the  Chicago  river  and  the  north  line  of  Randolph 
"  street  aforesaid  extended  eastwardly,  in  conformity  with 
"  the  limiting  harbor  lines  so  fixed  and  established  as  afore- 
"  said,  and  under  the  supervision  of  the  Engineer  Bureau  of 
"  the  United  States  Government,  and  having  agreed  and 
"  hereby  expressly  stipulating  to  conform  to  and  observe  the 
"  plan  of  limiting  harbor  lines  so  recommended  and  approved 
"  as  aforesaid,  as  well  as  the  directions  which  may  be  given  in 
"  reference  to  the  proper  construction  of  said  docks  and 
"  wharves  by  the  proper  officers  of  the  Engineer  Bureau  of 
"  the  United  States. 

"  It  is  thereupon  and  in  consideration  of  the  premises  stip- 
"  ulated  and  agreed,  that  the  injunctional  order  heretofore  made 
"  and  entered  of  record  in  this  cause,  by  agreement  of  the  par- 
"  ties,  be  set  aside  and  vacated,  and  the  information  herein 
"  dismissed,  with  leave  to  the  said  complainant  to  reinstate  the 
"  same  whenever  the  said  defendant  shall  fail  or  refuse  to  con- 
"  form  to  the  limiting  harbor  lines  so  established  as  aforesaid 
"  and  the  directions  of  the  proper  engineer  officer  of  the  United 
"  States  in  charge  of  the  construction  of  docks  and  wharves  in 
"  the  said  outer  harbor,  or  any  part  thereof."  (Rec, 
640-1.) 

On  the  filing  of  this  stipulation  the  injunction  was  dissolved, 
and  the  Railroad  Company  resumed  the  construction  of  pier 
No.  1  adjacent  to  the  river  and  east  of  the  breakwater  of 
1869. 


;39 


-j 


The  work  on  this  pier  appears  to  have  been  commenced 
after  the  passage  of  the  Act  of  April  16,  1869,  and  to  have  been 
completed  in  1873.  During  the  same  period  a  large  part  of 
the  triangular  space  outside  the  breakwater  of  1869,  north  of 
the  south  line  of  Monroe  street,  marked  on  the  map  "  Built 
"  1873,"  was  filled  with  earth.  There  was  also  considerable 
filling  done  outside  the  breakwater  near  the  foot  of  Fourteenth 
street,  and  an  engine-house  was  constructed  on  the  newly  made 
land.  A  new  line  of  breakwater  between  Twelfth  street  and 
Fourteenth  street  was  built  in  the  year  1870,  as  indicated  on 
the  map.  This  structure  consisted  of  cribs  made  of  timber, 
which  were  sunk  in  the  lake  loaded  with  stone.  Between 
April  1869  and  April  1873  ^ove  than  $200,000  was  expended 
by  the   Company  upon    these  constructions.      (Rec,  349-50, 

.355-) 

On  the  15th  of  April  1873,  the  Act  of  April  16,  1869  above 
referred  to  was  repealed.  (Rec,  609.)  It  is  not  pretended 
that  the  Illinois  Central  Railroad  Company  has  ever  assented 
in  any  way  to  the  repealing  Act,  or  that  it  is  estopped  by 
acquiescence  or  otherwise  from  asserting  the  rights  and  title 
vested  in  it  under  the  Act  of  1869. 

The  improvements,  begun  upon  the  granted  lands  before  the 
repeal  and  not  then  completed,  were  prosecuted  to  completion 
afterwards;  and  between  the  date  of  the  repealing  Act  and 
the  commencement  of  this  suit  new  works  of  considerable 
magnitude  were  undertaken  and  finished.  In  1880  and  1881 
piers  2  and  3  shown  upon  the  Morehouse  map  were  built 
north  of  Randolph  street,  in  conformity  to  plans  approved  by 
the  War  Department.  (Rec,  351,  370-1.)  A  copy  of  the 
tracing  exhibiting  the  plan  of  these  piers,  and  the  correspond- 
ence between  the  engineer  officers  of  the  Government  and  the 
superintendent  of  the  Railroad  Company  on  the  subject,  have 
been  introduced  in  evidence.  (Rec,  352-3,  1,203.)  The 
narrow  strip  of  ground  south  of  and  adjacent  to  slip  C  and 
pier  C  w^as  enclosed  and  filled  in  1881  (Rec,  371);  and  an 
iron  bridge  or  viaduct  1,760  feet  or  more  in  length  was  con- 
structed the  same  year,  extending  from  the  foot  of  Randolph 
street  over  the  railroad  tracks  to  the  base  of  pier3«  The  via- 
duct was  needed  to  make  the  new  piers  accessible  to  the  pub- 
lic, and  authority  to  construct  it  was  given  by  an  ordinance  of 
the  city  council  passed  July  12,  1880.  (Rec,  299,  372,  646-7.) 
This  ordinance  provided  for  the  extension  of  Randolph    street 


o*^ 


30 

to  the  lake,  and  required  that  the  cost  of  building  and  maintain- 
ing the  viaduct  and  keeping  it  in  repair  should  be  borne 
by  the  Railroad  Company,  and  that  "  the  right  to  the  use 
of  the  said  bridge  or  viaduct  shall  be  forever  free  to  the  pub- 
lic and  to  all  persons  having  occasion  to  pass  and  repass 
thereon." 

In  1882  the  pier  which  had  been  built  in  1870  extending 
from  the  foot  of  Twelfth  street  to  a  prolongation  of  the  north 
line  of  Lot  21,  was  continued  south  to  the  center  line  of  Six- 
teenth street  extended.  The  old  breakwater  which  was  built 
in  1852  had  become  dilapitated,  and  experience  had  shown 
the  necessity  of  having  this  protection  placed  at  a  greater  dis- 
tance from  the  railroad  tracks.  Bv  the  ordinance  of  1852  the 
Company  was  required  to  erect  and  forever  maintain  a  con- 
tinuous line  of  pier  work  outside  of  its  tracks  of  sufficient- 
strength  and  magnitude  to  protect  the  shore  from  further  dam- 
age from  the  lake.  South  of  Lake  Park  this  work  wTas  to  be 
placed  at  such  distance  outside  of  the  tracks  "  as  may  be  ex- 
pedient." The  principal  object  of  the  new  pier  was  to  pro- 
tect the  railway  tracks  from  injury  by  the  waves  during  vio- 
lent storms  coming  from  the  north-east.  Another  object  was 
the  construction  of  a  slip  between  the  breakwater  and  the 
shore,  where  vessels  laden  with  materials  for  the  Company's 
use  or  having  freight  to  be  handled,  could  enter  and  lie  in 
safety.      (Rec,  376-7.) 

The  large  wharf  shown  on  the  Morehouse  map  at  the  foot 
of  Thirteenth  street  was  built  in  18S5.  The  plan  was  referred 
to  the  War  Department  and  approved.  As  the  new  outer  har- 
bor was  not  then  protected  in  any  way  from  southerly  and 
south-easterly  storms,  it  was  suggested  by  the  resident  officer 
of  engineers  in  charge  of  the  harbor  that  the  wharf  would 
be  of  advantage  to  shipping  by  intercepting  the  seas  coming 
from  a  southerly  direction;  it  was  also  required  for  the  proper 
accommodation  of  the  company's  traffic.      (Rec,  372-375.) 

The  outlay  upon  these  different  works  between  April  16, 
1869  and  April  1,  1887,  appears  to  have  been  about  $810,- 
000,  of  which  sum  $200,000  and  upwards  was  expended  be- 
fore April  15,  1873.  (R-ec55  35°5  352-)  The  whole  amount 
expended  on  the  Company's  works  along  the  lake  shore  since 
1852,  according  to  a  careful  estimate  made  by  one  of  its 
officials,  is  upwards  of  $3,000,000.      (Rec,  379-80.) 


395 

That  the  works  are  necessary  in  the  strictest  sense  for  the 
complete  operation  of  the  railroad,  is  conclusively  established 
by  the  evidence.  (Rec,  testimony  ol  E.  T.  Jeffery,  368, 
375-379,  387;  Clarence  Buckingham,  483-495;  George  W. 
Cushing,  495-500;  W.  C.  Garloch,  507-515.)  On  this  point 
there  is  no  conflict  of  testimony.  That  thev  have  caused  any 
obstruction  to  navigation  or  any  detriment  to  the  commercial 
interests,  is  not  alleged  in  the  information,  or  pretended  by 
anybody. 

Before  concluding  this  slatement  attention  should  perhaps  be 
called  to  the  action  of  the  War  Department  in  1881  and  1882, 
upon  an  application  for  permission  to  enclose  and  fill  the  unoc- 
cupied part  of  the  strip  three  hundred  feet  wide  in  front  of  the 
public  ground  between  Park  Row  and  Randolph  street,  which 
the  Company  was  authorized  to  appropriate  to  its  use  by  the 
ordinance  of  June  14,  1852.  The  growth  of  traffic  had  been 
such  as  to  require  greater  trackage  accommodations,  and  the 
company  thought  it  necessary  to  take  possession  of  the  strip 
one  hundred  feet  wide,  as  yet  unoccupied,  on  the  east  side  of 
the  breakwater.  With  this  purpose  in  view  a  few  piles  were 
driven  near  Park  Row,  but  the  engineer  officer  in  charge  of 
the  harbor  objected  to  the  work  and  it  was  discontinued.  (Rec, 
380,  390-1.)  The  matter  was  then  referred  to  the  War 
Department,  and  the  action  of  the  Department,  including  all 
the  official  correspondence  on  the  subject,  has  been  put  in  evi- 
dence. (Rec,  390-427.)  The  rights  claimed  by  the 
Railroad  Company  are  very  fully  explained  in  the  letter  of  its 
Solicitor  to  the  Secretary  of  War  under  date  of  July  25,  1881. 
(Rec,  397-401.)  Attention  was  called  in  this  communica- 
tion to  the  decisions  of  this  court,  by  which  the  doctrine  is  es- 
tablished that  the  title  to  land  under  navigable  waters  like  the 
Great  Lakes  is  vested  in  the  respective  States  within  which 
the  land  is  situated;  and  it  was  submitted  that  the  United 
States  was  in  no  way  concerned  in  respect  to  the  proposed  ex- 
tension of  the  Company's  works  one  hundred  feet  farther  into 
the  lake,  except  so  far  as  it  might  be  important  to  inquire 
whether  such  extension  would  unnecessarily  obstruct  the  har- 
bor or  impair  the  public  right  of  navigation.  The  advice  of 
the  Attorney  General  (Benjamin  Harris  Brewster)  was  taken 
by  the  Secretary  of  War  upon  the  legal  question  involved, 
whose  official  opinion  on  the  subject  is  fully  disclosed  in  the 
following  extract  from  his  reply  to  the  Secretary  under  date 
of  February  6,  1882: 


32 

"  The  question  whether  the  ownership  of  the  soil  is  in  the 
44  company  or  in  the  State,  or  elsewhere  (the  Unifed  States  as- 
"  serting  no  title  thereto),  appears  to  me  to  be  unimportant  so 
"  far  as  the  General  Government  is  concerned,  and  the  only 
'•  inquiry  which  need  be  entertained  by  your  Department,  is, 
44  whether  the  construction  of  the  'dock  line'  will  obstruct,  en- 
"  croach  upon  or  interfere  with  the  harbor  improvement,  and 
"  thus  injuriously  affect  its  usefulness  in  the  interest  of  navi- 
u  gation.  If  so,  it  would  not  only  be  your  duty  to  withhold 
44  your  assent  to  the  prosecution  of  the  work  but  to  direct  that 
44  proceedings  be  taken  in  the  proper  court  to  enjoin  the  pro- 
44  posed  encroachment,  should  the  company  persist  in  going  on 
44  therewith.  That  the  United  States  may  avail  itself  of  the 
44  remedy  by  injunction  to  protect  from  injury  improvements  in 
44  navigable  waters  made  under  the  authority  of  Congres,  is  not 
44  at  all  doubtful.  {Unted  States  v.  Duluth,  1  Dill.,  469.)  The 
•"  inquiry  suggested  above,  however,  being  one  of  fact,  I  can 
44  afford  you  no  aid  in  determining  it.  In  its  consideration  the 
44  views  of  the  officers  of  the  Engineer  Department,  who  have 
"  immediate  charge  of  the  harbor  improvement,  are  entitled  to 
44  very  great  weight,  and  will,  I  doubt  not,  enable  you  to  reach 
44  a  correct  conclusion."      (Rec,  414.) 

Acting  upon  this  advice,  the  Secretary  of  War  on  the  14th 
of  April  1882  approved  a  recommendation  made  by  the  Chief 
of  Engineers,  that  the  inquiry  suggested  by  the  Attorney  Gen- 
eral be  submitted  to  a  board  of  engineer  officers,  to  consist  of 
Gen.  John  G.  Parke,  Gen.  G.  B.  Comstock  and  Gen.  Godfrey 
Weitzel.     (Rec,  416.) 

The  board  met  at  Chicago  on  the  24th  of  May  1882,  and, 
after  examining  the  harbor  and  listening  to  the  suggestions  of 
all  who  had  anything  to  say  on  the  subject,  submitted  to  the 
Secretary  of  War  June  12,  1882  a  report  in  writing,  in  which 
the  conclusions  they  had  reached  were  stated  substantially  as 
follows:  The  outer  harbor  can  be  made  of  the  greatest  ad- 
vantage to  the  general  commerce  of  the  country  and  of  Chi- 
cago only  by  the  construction  within  it  of  wharves  or  docks, 
with  intervening  slips  of  suitable  width  and  length,  which 
should  be  fixed  by  a  board  of  engineer  officers  specially  con- 
vened for  that  purpose.  In  order  that  the  heavy  freights, 
especially  grain,  coal  and  lumber,  may  be  moved  with  the 
greatest  facility,  elevators,  cars  and  vessels  must  lie  side  by 
side.     To  develop  the  full  value  of  the  harbor  railroad  tracks 


O  ■■ 

33 

must  therefore  run  down  the  piers.  It  is  only  in  this  way,  by 
numerous  piers  wiih  railroad  tracks  upon  them  connec  ing  im- 
mediately with  railways,  that  the  full  benefits  of  the  harbor  to 
navigation  and  commerce  can  be  obtained,  and  the  large  sum 
spent  by  the  United  States  in  constructing  it  can  produce  its 
designed  result.  The  present  right  of  way  of  200  feet  held 
by  the  Illino  s  Central  Railroad  Company  does  not  give  a 
width  sufficient  to  connect  tracks  on  the  piers  with  those  of 
the  present  shore  line.  If  they  began  200  feet  outside  of  the 
present  shore  line  suitable  curves  could  be  put  in.  This  line 
should,  therefore,  be  established  for  that  purpose.  The  strip 
100  feet  wide  next  landward  of  the  ends  of  the  piers  should 
be  a  public  highway,  and  the  other  strip  100  feet  wide  between 
this  and  the  present  shore  prottction  should  be  occupied  by 
the  Illinois  Central  Railroad  Company  as  desired  by  it.  If 
this  plan  should  be  adopted  by  the  Government,  a  very  valua- 
ble franchise  would  be  yielded  to  the  railroad  company,  for 
which  it  should  furnish  some  recompense.  It  should,  there- 
fore, be  required  to  make  the  curved  connection  between  its 
tracks  and  those  on  the  wharves,  and  to  haul  the  cars  to  and 
from  those  wharves  at  reasonable  rates,  unless  its  charter 
already  covers  both  of  those  points.  It  should  also  be  re- 
quired to  build  at  its  own  expense  viaducts  in  sufficient  num- 
bers and  of  suitable  construction  to  accommodate  the  commerce 
from  the  streets  of  the  city  to  the  proposed  public  highway 
adjacent  to  and  on  the  other  side  of  its  tracks.  These  via- 
ducts should  be  permanent  structures,  and  should  be  promptly 
built  when  required  by  the  Secretary  of  War.  In  suggesting 
this  plan  the  question  of  the  ownership  of  the  submerged  lands 
has  not  been  considered,  but  only  what  right  in  the  navigable 
waters  of  the  harbor  the  government  might  relinquish  in  order 
that  it  may  be  of  the  greatest  usefulness  to  commerce. 

In  direct  answer  to  the  question  of  fact  sabmitted  to  the 
board  the  report  says,  "  that  the  proposed  extension  of  the 
"  dock  line  by  the  Illinois  Central  Railroad  Company,  to  which 
"in  our  plan,  there  is  no  objection,  will  encroach  upon, 
"  obstruct  and  interfere  with  the  harbor  at  Chicago,  Illinois, 
"  but  will  not  injuriously  affect  its  usefulness  in  the  interest  of 
"  navigation  if  that  plan  is  executed.  In  our  opinion  the  in- 
"  junction  or  prohibition  by  the  War  Department  against  the 
"extension  of  the  dock  line  by  the  Illinois  Central  Railroad 
"  Company   should    be   withdrawn,   if   this   company  will  first 


34 

"  furnish  good  and  sufficient  guarantee  to  the  Secretary  of 
"  War  that  it  will  comply  with  all  the  requirements  demanded 
"  of  it  in  the  plan  which  we  have  above  outlined."  In  con- 
clusion the  board  express  their  concurrence  in  the  report  of 
the  board  of  engineers  of  1871,  that  no  piers  or  wharves 
should  be  erected  in  the  outer  harbor  of  Chicago  until  the 
plans  are  approved  by  the  Secretary  of  War,  (Rec,  423- 
427.) 

On  the  28th  of  June  1882  the  recommendations  of  the 
board  were  disapproved  by  the  Secretary,  for  reasons  set 
forth  in  a  written  memorandum  filed  with  the  report.  The 
reasons  assigned  were:  First.  That  the  conditions  to  be  im- 
posed on  the  railroad  company  as  suggested  in  the  report, 
were  such  as  under  the  existing  circumstances  the  War  De- 
partment had  no  legal  power  to  make  or  to  enforce.  Second. 
That  the  plan  submitted  in  the  report  was  in  fact  a  plan  for 
the  commtncement  of  a  system  of  wharves  to  be  erected  upon 
the  submerged  land,  the  title  to  which  was  in  dispute;  that 
properly  the  Secretary  of  War  could  give  no  approval  to  plans 
for  wharves  except  when  submitted  by  the  person  or  corpora- 
tion indisputably  entitled  to  build  them ;  that  the  approval  of 
the  plan  recommended  by  the  board  would  be  in  effect  to 
yield  possession  to  the  railroad  company,  and  such  action 
would  be,  as  the  Secretary  conceived,  an  assumption  of  judi- 
cial functions  by  the  Department,  which  it  was  not  proper  for 
it  to  exercise  in  such  a  case.      (Rec,  418-423.) 


THE    PLEADINGS. 

The  Amended  Information.  Complainants  allege:  That 
the  State  is  invested  with  complete  sovereign  and  proprietary 
rights  over  that  part  of  Lake  Michigan  which  lies  within  its 
jurisdiction,  subject  only  to  the  authority  vested  in  Congress 
"to  regulate  commerce  with  foreign  nations  and  among  the 
"  several  States." 

That  the  United  States  has  commenced  the  construction  of 
a  harbor  in  front  of  fractional  sections  ten  and  fifteen  in  Chi- 
cago, having  in  view  simply  the  ereclion  of  outer  piers  for  the 
protection  of  shipping,  leaving  further  improvements  to  be 
made,  in  accordance  with  the  general  designs  of  the  Govern- 
ment, by  the  proprietors  of  the  land  under  water  and  those 
having  the  right  and  power  to  make  them. 


0« 


35 


Reference  is  made  to  the  grant  of  public  lands  made  by 
Congress  in  1827  in  aid  of  the  Illinois  and  Michigan  Canal, 
and  to  the  various  Acts  of  the  State  legislature  relating  to  the 
canal  referred  to  in  the  foregoing  statement.  It  is  alleged  that 
fractional  section  fifteen  was  a  portion  of  that  grant;  that  the 
canal  commissioners  caused  a  fart  of  the  tract  to  be  subdivided 
on  or  about  June  13,  1836;  and  made  and  recorded  a  plat,  and 
afterwards  sold  the  lot5;;  but  that  the  subdivision  was  confined 
to  the  west  part  of  the  fractional  section  and  did  not  extend 
east  of  Michigan  avenue  as  now  occupied  and  user),  except  for 
a  short  distance  at  the  south  end  where  block  23  is  situated; 
that  pursuant  to  the  provisions  of  the  legislative  Acts  of 
February  21,  1843,  and  March  1,  1845,  a  loan  of  $1, 600,000 
was  subscribed  for,  and  a  deed  was  made  by  the  Governor  by 
which  "  all  the  canal  lands  then  remaining  unsold  "  were  con- 
veyed to  the  canal   trustees;  and   it   is  claimed  that  under  that 

ml  ' 

general  description  the  canal  trustees  acquired  title  to  all  that 
part  of  fractional  section  fifteen  which  lies  east  of  Michigan 
avenue,  except  block  23,  and  continued  seized  and  possessed 
of  the  same  until  August  19,  187 1,  when  they  reconveyed  the 
same  to  the  State.  It  is  insisted  that  it  was  not  in  the  power 
of  the  State  during  the  intermediate  period  to  grant  any  part 
of  said  land,  whether  submerged  or  not,  to  the  Illinois  Central 
Railroad  Company. 

Reference  is  made  to  the  Act  of  Congress  of  September 
20,  1850,  by  which  the  grant  was  made  to  the  State  in  aid  of 
the  construction  of  the  railroad  afterwards  built  by  the  Illinois 
Central  Railroad  Company,  and  to  the  legislative  Act  of 
February  10,  i85i,by  which  that  Company  was  incorporated; 
also  to  the  ordinances  of  the  common  council  of  Chicago  of 
June  14,  1852,  September  10,  1855,  an<^  September  15,  1856, 
by  which  consent  was  given  to  the  location  of  the  railroad 
within  the  city,  and  to  the  occupation  by  the  Railroad  Company 
of  the  several  parcels  of  land  therein  described;  and  it  is  al- 
leged that  the  Company  entered  upon  and  is  now  using  the 
land  "  for  the  purpose  of  operating  its  said  railroad  within  the 
limits  of  said  city." 

-  That  in  1852,  when  the  Company's  breakwater  was  con- 
structed and  its  railroad  tracks  laid,  that  part  of  fractional  sec- 
tion fifteen  occupied  by  them  was,  to  a  considerable  extent, 
covered  by  the  waters  of  the  lake,  but  was  dry  ground  when 
the   tract   was  granted   to  the  State;  that  it  had  become  sub- 


36 

merged  "  by  reason  of  certain  artificial  causes,  and  was  at  all 
times  subject  to  and  easy  of  reclamation,"  and  was  still  part 
and  parcel  of  the  land  granted  to  the  State,  subject  to  the 
trusts  created  by  that  grant  and  the  Acts  of  February  21, 
1843,  and  March  1,  1845,  before  referred  to,  and  could  not  be 
used  or  applied  for  any  other  than  canal  purposes. 

Reference  is  made  to  the  legislative  Act  of  April  16,  1869 
referred  to  in  the  foregoing  statement,  and  it  is  alleged  that 
the  claims  made  by  the  Company  under  that  Act  are  with- 
out foundation.  It  is  insisted  that  the  Act  was  never  passed 
by  the  legislature;  that,  if  it  was  passed,  it  was  inoperative 
and  ineffectual  for  the  purposes  claimed,  because  the  Company, 
could  not  take  or  hold  the  land  granted,  and  particularly 
could  not  take  or  hold  the  submerged  land  constituting  the 
bed  of  Lake  Michigan;  that  the  legislature  had  no  power  to 
make  the  grant,  and,  if  it  had  such  power,  the  Act  was  in- 
valid "  for  many  reasons,  and  especially  in  this,  that  it  was  a 
private  and  local  law,  and  embraced  more  than  one  subject, 
and  embraced  several  subjects  not  expressed  in  the  title." 

It  is  further  alleged  that  the  Railroad  Company  had  no 
riparian  rights  in  fractional  sections  ten  and  fifteen,  and  that 
the  Act  of  April  16,  1869,  if  otherwise  valid,  was  void  under 
the  constitution  of  Illinois,  because  it  would  deprive  the  own- 
ers of  land  along  the  shore  of  the  lake  in  those  fractional  sec- 
tions, and  among  others  the  trustees  at  that  time  of  the  Illi- 
nois and  Michigan  Canal,  of  the  rights  incident  to  the  owner- 
ship of  land  so  situated  without  compensation. 

It  is  alleged  that  no  action  was  taken  by  the  Railroad 
Ccmpany  under  the  said  Act,  and  that  on  the  15th  of  April 
1873,  tne  law  was  repealed;  and  it  is  insisted  that  the  repeal 
had  the  effect  to  withdraw  and  take  from  the  Company  any 
title  which  may  have  passed  by  the  repealed  statute;  that  the 
Company  was  incapable  under  its  charter  of  accepting  the 
grant;  and  the  Act  was  inoperative  "  b}r  reason  of  the  pecul- 
iarity in  the  terms  of  the  grant,  the  legislature  by  such  pre- 
tended Act  purporting  to  grant  the  fee  to  said  Railroad 
Company  and  by  the  said  pretended  Act  expressly  withhold- 
in  g  from  said  Railroad  Company  the  power  to  grant,  sell  or 
convey  the  same";  that  if  the  Act  had  the  effect  to  pass  the 
title  to  the  land  granted,  "  it  was  a  title  subject  to  be  resumed 
by  the  State  which  gave  it";  that  there  was  no    consideration 


37 

for  the  grant,  and  the  object  and  intention  of  the  legislature  in 
passing  the  repealing  Act  was  "  to  undo  what  had  been  do?ie  by 
"  that  pretended  Act  of  1869^0  withdraw  what  had  been  given 
"  by  that  pretended  Act,  and  to  revest  .'m  the  State  whatever 
"  title  had  bet- n  divested  thereby." 

Complaint  is  then  made,  that  "the  Illinois  Central  Rail- 
"  road  Company  after  its  entrance  into  the  city  began  a  sys- 
'•  tern  of  encroachment  upon  the  domain  of  the  State,  the  first 
"  indication  of  which  was  the  procuring  of  the  passage  of  the 
"  ordinance  purporting  to  grant  in  perpetuity  the  two  triangu- 
"  lar  strips  of  ground  near  Randolph  street,  and  which  it  im- 
"  mediately  entered  upon,  pretending  to  assume  the  right  of 
"  the  city  to  grant  the  same,  and  is  now  using  the  same 
"under  the  same  pretense;  that  it  soon  after  began  filling 
"  with  earth  that  portion  of  the  bed  of  the  lake  in  front  of 
"  fractional  section  ten  north  of  Randolph  street,  under 
"  the  claim  that  having  acquired  the  land  on  the  shore 
"  of  the  lake,  the  so-called  riparian  rights  enabled  it 
"  to  advance  the  shore  and  its  own  land  into  the  lake  at 
"  its  pleasure,  or  upon  some  other  unfounded  assertion  of 
"  right,  but  that  this  encroachment  upon  the  property  belong- 
"  ing  to  the  State  was,  after  it  had  proceeded  to  a  consider- 
able extent,  arrested  by  the  action  of  the  United  States 
"  in  suing  out  of  the  circuit  court  of  the  United 
"  States  for  the  Northern  District  of  Illinois,  an  injunction 
"  prohibiting  the  continuance  of  the  encroachment  upon  the 
"  waters  of  the  lake,  which  injunction  remained  in  force  until 
"  dissolved  by  the  Railroad  Company  entering  into  a  stipula- 
tion having  the  substantial  effect  of  the  injunction;  that  the 
"  said  Railroad  Company  not  long  ago  entered  upon  the  bed 
"  of  the  lake  in  front  of  its  breakwater  and  commenced  to  fill 
"  the  same  with  earth,  with  the  view  of  using  the  same  for 
"  railroad  purposes,  and  this  was  done  under  the  claim  that 
"the  ordinance  of  the  city  above  mentioned  conferred  upon  it 
"  the  right  to  use  land  three  hundred  feet  in  width,  and  that 
'*  it  was  now  occupying  only  two  hundred  feet  in  width,  but 
"  this  encroachment  was  also  prevented  by  the  action  of  the 
"  officers  of  the  United  States,  whose  request  to  the  Railroad 
"  Company  to  desist  was  sufficient,  without  the  necessity  of 
"  suing  out  an  injunction;  that  the  said  Railroad  Company 
"  has  begun  and  is  now  prosecuting  the  work  of  filling  with 
"  earth  and  other  materials,  that  portion  of  the  bed  of  Lake 
"  Michigan  in  front  of  fractional  section  fifteen,  both  north  and 


38 

"  south  of  lot  21,  near  its  round-house,  mentioned  in  sail  al- 
"leged  Act  of  the  legislature  of  Illinois  passed  in  1869;  that  it 
"  is  proceeding  to  sink  lines  of  cribs  of  earth  and  stone  in  the 
"  lake  in  front  of  said  section  fifteen  and  enclosing  within  such 
"  lines  large  areas  of  the  lake,  which  it  then  fills  in  with  earth 
"  and  other  material  in  order  to  appropriate  the  ground  so 
"  made  and  to  use  the  same  for  railroad  and  other  purposes; 
"  that  your  informant  is  informed  that  it  justifies  or  pretends 
"  to  justify  such  proceedings  under  the  pretended  Act  of 
"  1869,  so  far  as  they  are  carried  on  north  of  its  round-house, 
"  and  by  some  claim  of  riparian  rights,  so  far  as  they  are  car- 
"  ried  on  south  of  its  round-house;  that  it  also  asserts  that  by 
u  its  charter  of  1851  it  was  empowered  to  use  all  the  land  and 
"  domain  of  the  State  which  it  might  ever  after  need  and  de- 
"  sire  for  railroad  purposes,  while  the  truth  and  fact  is  that  it 
"  has  long  ago  made  the  location  of  its  road  and,  as  your  in- 
"  formant  believes,  has  caused  the  same  to  be  recorded  in  the 
"  proper  offices  as  the  law  requires,  and  its  power  to  use  the 
"  public  domain  has  been  long  exhausted,  and  in  addition 
"thereto  such  enlargement  and  increase  of  its  lands  and  facili- 
"  ties  are  not  required  for  its  own  railroad  purposes,  but  that 
"  other  railroad  companies  have  leased  from  the  Illinois  Cen- 
"  tral  the  use  of  its  tracks,  grounds  and  structures, 
"  from  which  a  large  rental  is  derived,  and  without  such  facili- 
"  ties  so  used  and  enjoyed  by  other  railroad  companies,  itsoc- 
"  cupancy  of  the  public  ground  could  be  very  much  curtailed 
"  instead  of  being  enlarged." 

It  is  alleged  that  these  claims  and  pretenses  of  the  Railroad 
Company  "  are  a  great  and  irreparable  injury  to  the  State  of 
"  Illinois  as  a  proprietor  and  owner  of  the  bed  of  the  lake, 
"  throwing  doubts  and  clouds  upon  its  title  thereto,  and  pre- 
"  venting  an  advantageous  sale  or  other  disposition  thereof  "; 
that "  the  entry  upon  and  the  use  and  occupancy  of  the  public 
"  domain,  as  above  set  forth  is  a  purpresture  and  a  public 
"  nuisance,"  and  the  court  is  called  upon  "  to  adjust  and  de- 
"  termine  the  title  to  the  portion  of  the  lake  in  question,  and  to 
"  limit  and  determine  the  rights  therein  and  thereto  of  the 
"  Illinois  Central  Railroad  Company." 

The  prayer  is,  "that  the  title  of  the  State  of  Illinois  to  the 
"bed  of  Lake  Michigan  may  be  established  and  confirmed; 
"  that  the  claims  of  the  said  Railroad  Company  thereto  under 
"  the  various  grants  and  ordinances  above  referred  to  may  be 


39 

"  declared  to  be  unfounded  and  without  force,  and  that  the 
"  clouds  and  doubts  cast  thereby  upon  the  title  of  the  State  be 
"removed;  that  the  boundaries  between  the  land  of  the 
'•  United  States  and  the  City  of  Chicago  and  of  the  State  may 
"  be  ascertained,  and  the  shore  line  and  navigable  water  de- 
"termined;  that  the  said  Illinois  Central  Railroad  Company 
"  may  be  enjoined  and  restrained  from  filling  any  of  the  bed 
"  of  the  lake,  from  sinking  cribs  or  constructing  piers  therein, 
"  or  in  any  manner  encroaching  upon  the  domain  of  the  State, 
"  as  the  same  is  in  this  information  asserted  to  exist,  and  that 
"  the  rights  of  the  said  Railroad  Company,  under  the  various 
"laws  of  the  State,  may  be  ascertained  and  declared;  that  the 
u  structures  and  erections,  all  filling,  piling  and  crib  work  and 
"  pier  constructions  made  by  the  Illinois  Central  Railroad 
"Company  upon  or  in  the  said  domain  of  the  State,  may  be 
"  directed  to  be  removed,  and  such  domain  restored  to  the 
"  condition  in  which  it  was  before  such  encroachments  were 
"  made,  and  that  the  State  of  Illinois  may  be  declared  to  have 
"  the  sole  and  exclusive  right  to  develop  the  harbor  of  Chi- 
"  cago  by  the  construction  of  docks,  wharves,  etc.,  and  to  dis- 
"  pose  of  such  rights  at  its  pleasure  for  the  interests  of  the  pub- 
"  lie,  and  that  such  other  and  further  or  different  relief  may  be 
"granted  as  is  agreeable  to  equity."      (Rec,  121  -143.) 

Answer  of  Illinois  Central  Railroad  Company. 
Respondent  admits  that  upon  the  admission  of  the  State  of 
Illinois  into  the  Union  the  title  to  the  bed  of  Lake  Michigan 
within  its  boundaries  became  vested  in  the  State,  with  full 
power  of  alienation,  subject  to  the  rights  of  riparian  owners 
and  the  power  to  regulate  commerce  vested  in  the  Congress 
of  the  United  States. 

It  admits  that  a  breakwater  has  been  constructed  in  front  of 
the  City  of  Chicago  by  the  United  States,  but  says  that  no 
docks  or  wharves  have  been  made  within  the  enclosed  area  ex- 
cept those  provided  by  the  Railroad  Company,  and  that  no 
detailed  plan  for  the  improvement  of  the  harbor  has  been 
adopted  by  the  Government,  except  in  relation  to  the  part 
thereof  occupied  and  improved  by  the  Company. 

It  admits  that  fractional  section  fifteen  was  one  of  the  tracts 
of  public  land  granted  to  the  State  by  Congress  in  1827  to 
aid  in  the  construction  of  a  canal,  and  that  the  canal  commis- 
sioners subdivided  the  tract  in   1836,  and  caused  a  plat  thereof 


40 

to  be  made  and  recorded,  but  it  says  that  the  subdivision  in- 
cluded the  whole  fractional  section,  and  that  the  portion  thereof 
lying  east  of  the  west  line  of  Michigan  avenue,  except  block 
23,  was  designated  on  the  plat  as  "  Michigan  avenue,"  and 
became  thereby  dedicated  to  public  use. 

It  admits  that  a  loan  was  made  to  the  State  pursuant  to  the 
provisions  of  the  Acts  of  February  21,  1843,  and  March  1, 
1845,  and  that  to  secure  the  loan  a  deed  was  made  by  the 
Governor  to  the  canal  trustees  of  "  all  the  canal  lands  then 
remaining  unsold";  but  it  denies  that  any  part  of  frac- 
tional section  fifteen  passed  by  that  conveyance.  It  alleges 
that  the  canal  commissioners  had  long  prior  thereto  sold  and 
conveyed  all  the  lots  in  the  subdivision  fronting  on  Michigan 
avenue  to  various  persons,  who  purchased  the  same  relying  on 
the  plat,  and  that  no  title  to  any  part  of  the  tract  remained  in 
the  State  at  the  time  the  conveyance  was  made  to  the  canal 
trustees;  that  after  that  conveyance  was  made,  and  before  the 
year  187 1,  the  canal  was  completed  and  all  the  indebtedness 
of  the  State  growing  out  of  its  construction  fully  paid,  and 
that  on  or  about  the  19th  of  August  187  r  the  canal  trustees 
released  and  reconveyed  the  canal  to  the  State,  and  all  the  prop- 
erty, rights,  privileges  and  franchises  pertaining  thereto.  The 
respondent  therefore  claims  and  insists  that  whatever  rights, 
if  any,  the  canal  trustees  may  have  acquired  in  fractional  sec- 
tion fifteen,  were  released  by  that  conveyance,  and  that  all 
grants  made  by  the  State  of  lands  in  that  section  were  binding 
on  the  State  from  the  time  they  were  made,  and  became  abso- 
lute and  effectual  at  least  upon  the  execution  of  the  release,  if 
not  before. 

It  admi's  the  passage  of  the  Act  of  Congress  of  Sep- 
tember 20,  1850,  donating  land  to  the  State  in  aid  of  the 
construction  of  the  railroad,  and  the  Act  of  February  10,  1851, 
incorporating  the  Illinois  Central  Railroad  Company;  also  the 
passage  of  the  city  ordinances  of  June  14,  1852,  September  10, 
1855,  and  September  15,  1856,  and  says  that  it  has  faithfully 
observed  and  performed  all  the  conditions  thereof;  it  also 
admits  that  it  entered  upon  the  lands  described  in  said  or- 
dinances, and  says  they  were  and  are  necessary  for  the  main- 
tenance and  operation  of  its  railroad  and  that  it  is  rightfully 
entitled  to  hold  and  use  the  same.  It  alleges  that  it  has  been 
in  the  actual  possession  of  the  strip  of  ground  300  feet  wide  in 
front  of  fractional  sections  ten  and  fifteen,  or  of  so  much  thereof 


41 


4 


as  lies  west  of  the  exterior  line  of  its  breakwater,  continuously 
since  1853,  and  of  the  triangular  pieces  of  ground  referred  to 
in  the  ordinances  of  September  10,  1855,  an<^  September  15, 
1856,  since  the  year  1856,  under  a  claim  of  title,  in  each  case, 
exclusive  of  any  other  right,  and  the  complainants'  cause  of 
action  in  respect  of  the  said  parcels  of  land,  if  an}'  there  may 
be,  did  not  accrue  within  twenty  years  before  the  commence- 
ment of  this  suit.  It  submits  to  the  court  that  all  the  matters 
in  said  information  complained  of  in  respect  of  the  said  parcels 
of  land  are  matters  which  may  be  tried  and  determined  at  law 
and  are  not  cognizable  in  a  court  of  equity;  and  it  asks  to  have 
the  same  benefit  of  these  defenses  as  if  it  had  pleaded  the  same, 
or  demurred  to  so  much  of  the  information  as  relates  thereto. 
It  admits  that  in  the  year  1852  a  considerable  portion  of 
what  is  now  solid  ground  between  Randolph  and  Twelfth 
streets,  lying  west  of  the* railroad  and  east  of  Michigan  avenue, 
was  covered  bv  water,  but  whether  the  solid  ground  extended 
at  any  time  prior  thereto  beyond  the  west  line  of  the  railroad 
the  respondent  is  not  informed.  It  says  that  in  1852  the  waters 
of  the  lake  wrre  advancing  upon  the  shore,  and  had  at  some 
points  between  Randolph  and  Twelfth  streets  reached  the 
eastern  line  of  Michigan  avenue  as  then  laid  out;  that  since 
the  year  1852,  and  especially  in  1872,  immediately  after  the 
great  fire  in  Chicago,  the  space  between  the  avenue  and  the 
railroad,  or  that  part  of  it  then  under  water,  was  used  as  a 
dumping  ground  for  the  deposit  of  the  waste  and  debris  of  the 
city,  and  that  by  such  means,  and  without  expense  to  the  city, 
the  ground  has  been  filled  nearly  to  a  level  with  Michigan 
avenue. 

It  admits  the  passage  of  the  Act  of  April  16,  1S69,  and 
claims  the  benefit  of  it  as  a  valid  and  subsisting  law.  It  insists 
that  the  Act  w7as  duly  and  constitutionally  passed  and  took  ef- 
fect as  a  law  of  the  State  and  became  obligatory  as  such  on 
the  day  of  its  passage.  It  denies  that  no  action  was  taken  in 
respect  of  the  grants  made  to  the  respondent  in  said  Act.  On 
the  contrary,  it  states  the  fact  to  be  that  within  a  reasonable 
time  after  its  passage,  to  wit,  July  6,  1870,  it  formally  accepted 
the  same  and  caused  notice  of  such  acceptance  to  be  filed  and 
made  a  matter  of  record  in  the  office  of  the  Secretary  of  State 
for  the  State  of  Illinois.  It  also  avers  that,  relying  upon  the 
provisions  of  said  Act,  it  entered  upon,  reclaimed  and  reduced 
to  profitable  use  considerable  portions  of  the  submerged  land 
therein  described,  before  the  Act  was  repealed,  and  expended 


42 

about  $500,000  in  so  doing.  It  is  further  stated  that  the  land 
so  reclaimed  has  been  otherwise  improved  at  great  expense, 
and  is  now  in  use  by  the  respondent  for  carrying  on  its  business 
and  is  necessary  for  such  use.  It  is  insisted  that  by  said  Act 
the  State  granted  to  the  respondent  the  absolute  title  to  the 
submerged  lands  therein  described;  that  it  was  a  grant  in 
-prczsenti,  and  that  the  Act  and  the  acceptance  thereof  consti- 
tuted a  valid  contract  between  the  State  and  the  respondent, 
which  could  not  be  revoked  or  impaired  without  the  consent  of 
both  parties  thereto.  The  power  of  the  legislature  to  make 
the  grant  and  the  capacity  of  the  Railroad  Company  to  accept 
it  are  insisted  on  ;  and  the  claim  made  by  the  S;ate  that  the 
Act  was  inoperative  by  reason  of  any  "  peculiarity  in  the  terms 
"  of  the  grant,"  or  that  the  grant  was  subject  to  revocation  for 
want  of  consideration,  is  denied. 

It  admits  the  passage  of  the  repealing  Act  of  April  15,  1873, 
but  says  the  Act  has  never  been  assented  to  or  acquiesced  in 
by  the  respondent,  and  is  unconstitutional  and  void,  because  it 
was  passed  in  violation  of  the  first  clause  of  section  10,  article 
1,  of  the  Constitution  of  the  United  States,  which  prohibits 
the  State  from  passing  any  law  impairing  the  obligation  of 
contracts,  and  also  because  it  is  repugnant  to  the  first  section 
of  the  fourteenth  amendment  of  the  Constitution  of  the  United 
Siates,  which  declares  that  no  State  shall  deprive  any  person 
of  life,  liberty  or  property  without  due  process  of  law. 

It  also  submits  that  the  said  Act  is  inoperative  and  void  for 
the  additional  reason,  that  it  is  repugnant  to  that  clause  of  the 
Constitution  of  the  State  of  Illinois  then  and  still  in  force,  which 
provides  that  "  no  contract,  obligation,  or  liability  whatever  of 
u  the  Illinois  Central  Railroad  Company  to  pay  any  money  in- 
"  to  the  State  treasury,  nor  any  lien  of  the  State  upon  or  right 
"  to  tax  property  of  said  Company,  in  accordance  with  the 
"  provisions  of  the  charter  of  said  Company,  approved  Febru- 
'•  ary  tenth,  in  the  year  of  our  Lord  one  thousand  eight 
"  hundred  and  fifty-one,  shall  ever  be  released,  suspended, 
"  modified,  altered,  remitted,  or  in  any  manner  diminished  or 
"impaired,  by  legislative  or  other  authority." 

The  respondent  denies  that  it  has  ever  encroached  upon  the 
domain  of  the  State;  but  says  that,  having  become  the  owner 
of  all  the  land  on  the  shore  between  Randolph  street  and  the 
river,  it  has  filled  up  a  portion  of  the  bed  of  the  lake  directly 
in  front   of    said    land  and  is  occupying  the  same  for  the  pur- 


43 

poses  of  its  business  and  in  furtherance  of  the  commerce  of  the 
city.  It  admits  that  these  improvements  were  at  one  time 
suspended  in  consequence  of  an  information  tiled  in  behalf  of 
the  United  States  for  an  injunction;  but  says  that  a  conference 
took  place  between  the  respondent  and  the  officers  of  the  War 
Department,  the  result  of  which  was  that  the  plan  of  the  pro- 
posed improvements  was  agreed  to,  and  the  work  was  after- 
wards completed  in  accordance  with  the  agreement.  It  ad- 
mits that  it  has  begun  the  work  of  filling  with  earth  a  portion 
of  what  was  at  the  time  of  the  passage  of  said  Act  of  1869  the 
bed  of  the  lake,  north  of  the  south  line  of  lot  21;  but  says  that 
it  is  the  owner  in  fee  of  all  the  ground  bordering  ihe  lake  at 
the  points  where  such  work  is  in  progress.  The  respondent 
alleges  that  none  of  the  improvements  made  or  in  contempla- 
tion extend  or  are  intended  to  be  extended  into  the  lake  to  the 
detriment  of  commerce,  or  that  thev  do,  or  will  when  com- 
pleted, interfere  with  or  obstruct  navigation;  and  it  claims  title 
to  the  lands  reclaimed  and  the  right  to  the  possession  and  use 
thereof,  under  anc!  by  virtue  of  its  charter,  the  Act  of  April 
16,  1869,  and  its  rights  as  riparian  owner. 

The  respondent  denies  that  it  claims  or  has  ever  claimed  the 
right  to  fill  up  the  bed  of  the  lake  to  an  indefinite  extent,  or  to 
any  extent  detrimental  to  the  interests  of  commerce,  as  the 
same  may  be  determined  by  the  proper  officers  of  the  United 
States,  but  it  claims  the  right  to  make  improvements  on  the 
shore  of  the  lake,  within  the  limits  of  its  riparian  ownership, 
tor  the  necessary  accommodation  of  its  railroad  traffic  and  the 
promotion  of  commence  and  navigation,  and  also  to  the  extent 
authorized  by  the  said  Act  of  1869.  It  admits  that  in  taking 
possession  of,  improving  and  making  available  for  business 
purposes  the  shallow  waters  of  the  lake  adjacent  to  the  shore, 
it  is  and  will  be  subject  to  all  the  conditions,  requirements  and 
obligations  imposed  by  the  said  Act;  and  it  submits  that  by 
reason  of  said  Act  and  the  acceptance  thereof  the  State  is 
estopped  from  asserting,  as  against  the  respondent,  any  right, 
title  or  interest  in  respect  of  the  matters  alleged  in  the  said 
amended  information.      (Rec,  69  -  95,  166.) 

Answer  of  the  City  of  Chicago.  By  its  answer  to 
the  original  information  all  the  facts  therein  stated  are  admit- 
ted. But  the  amended  information  contains  additional  aver- 
ments, and  in  its  answer  to  the  latter  the  city  insists  that  the 
plat    of    fractional  section    fifteen    included    all  the  land  in  the 


44 

fractional  section;  that  the  plat  was  certified,  acknowledged 
and  recorded  in  conformity  to  the  laws  of  the  State  then  in 
force  relating  to  town  plats,  and  that  by  virtue  of  such  laws  the 
plat  became  and  was  a  conveyance  of  all  that  portion  of  the 
tract  thereon  designated  as  Michigan  avenue  to  the  munici- 
pality then  known  as  the  town  of  Chicago,  to  be  held  by  it  "  in 
trust  for  the  people  of  the  State  of  Illinois  for  the  public  use 
indicated  by  the  designation  on  the  face  of  the  plat  ".  It  denies 
that  this  land  or  any  part  of  the  fractional  section  was  conveyed 
by  the  Governor  to  the  canal  trustees,  and  avers  that  the  leg- 
islature by  the  Acts  approved  February  18,  i86r  and  February 
13,  1863  (referred  to  in  the  preceding  statement)  expressly 
ratified  and  confirmed  the  dedication  to  public  use  of  all  the 
ground  shown  on  the  plat  lying  norih  of  block  23  and  east  of 
the  lots  abutting  on  Michigan  avenue.  It  is  further  averred 
that  the  city  has  been  in  possession  of  the  ground  since  its  in- 
corporation in  1837,  and  "  has  expended  thousands  of  dollars 
in  protecting  the  same  from  the  encroachment  of  Lake  Michi- 
gan and  in  restoring  the  same  from  and  after  the  abrasions 
made  by  the  waters  of  said  lake." 

It  is  stated  that  on  the  23d  of  April  1875  tne  city  adopted 
the  Act  of  the  legislature  entitled  '•  An  Act  to  provide  for  the 
incorporation  of  cities  and  villages,"  approved  April  10, 
1872,  and  that  by  said  Act  it  has  the  following  among  other 
powers:  "  To  erect  and  keep  in  repair  public  landing  places, 
"  wharves,  docks  and  levees.  To  regulate  and  control  the  use 
"  of  public  and  private  landing  places,  wharves,  docks  and  lev- 
"  ees.  To  fix  the  rate  of  wharfage  and  dockage.  To  collect 
"  wharfage  and  dockage  from  all  boats,  rafts  or  other  craft 
"  landing  at  or  using  any  public  landing  place,  wharf,  dock  or 
"  levee  within  the  limits  of  the  corporation."  Defendant  also 
says  that  "  by  said  Act  it  is  given  jurisdiction  upon  all  waters 
within  or  bordering  upon  said  city  to  the  extent  of  three 
miles  beyond  the  limits  of  the  city." 

Defendant  further  states  that  on  the  7th  of  June  1839  tne 
United  States  caused  so  much  of  fractional  section  ten  as  lay 
south  of  the  Chicago  river  to  be  subdivided  and  platted  in  ac- 
cordance with  the  laws  of  the  State;  that  a  plat  thereof  known 
as  "  Fort  Dearborn  Addition  to  Chicago,"  was  duly  made, 
certified,  acknowledged  and  recorded,  and  that  the  said  plat 
by  virtue  of  the  laws  of  the  State  then  in  force  became  and 
was  a  conveyance  to  the  city  of  all  the  streets,  avenues,  alleys 


45 

. 
and  public  grounds  delineated  on  the  map,  to  be  held  in  trust 
for  the  public  use. 

It  claims  to  have  been  since  the  plats  of  fractional  sections 
ten  and  fifteen  were  made  and  recorded  entitled  to  all  the 
rights  of  a  riparian  owner  on  the  shore  of  the  lake  from  Ran- 
dolph street  to  Park  Row;  and  says  that  by  virtue  of  several 
Acts  of  the  legislature  particularly  mentioned  it  is  and  has 
been  charged  with  the  duty  of  developing,  protecting  and  con- 
trolling the  harbor;  that  the  harbor  of  the  city  has  heretofore 
consisted  largely  of  the  Chicago  river,  which  has  a  dock  front- 
age many  miles  in  extent,  but  that  the  increase  of  population 
and  business  has  been  such  as  to  require  greater  harbor  facili- 
ties, and  the  duty  rests  upon  the  city  to  provide  the  same, 
"  and  to  that  end  to  avail  itself  of  the  dock  frontage  from  Ran- 
dolph street  to  Park  Row,  its  ownership  whereof  and  the 
rights  appurtenant  whereto  it  has  never  parted  with." 

Reference  is  made  to  the  Act  of  April  16,  1869,  and  it  is  al- 
leged that  the  city  has  never  accepted  the  same,  and  is  not 
bound  thereby.  It  is  insisted  that  the  Act  is  void  for  lack  of 
power  in  the  legislature  to  make  the  grants  therein  attempted 
to  be  made;  that  the  Illinois  Central  Railroad  Company  had 
no  power  to  enter  upon  the  erection  of  docks  and  wharves  and 
the  construction  of  a  harbor  in  the  waters  of  the  lake,  and 
could  derive  no  such  power  under  or  by  virtue  of  said  Act; 
that  the  Act  never  became  operative,  and  the  subsequent  Act 
of  April  15,  1873  was  a  valid  revocation  thereof.  (Rec,  97- 
100,  104-108.) 

Cross-Bill  of  the  City  of  Chicago.  The  cross- bill 
repeats  the  averments  made  by  the  city  in  its  answer,  and 
further  alleges  that  although  a  right  of  way  was  allowed 
to  the  Illinois  Central  Railroad  Company  by  the  ordinance 
of  June  14,  1852,  upon  the  conditions  therein  expressed, 
yet  that  ordinance  contains  nothing  to  divest  or  limit  the  city's 
rights  in  the  premises;  that  said  company  sets  up  and  asserts 
that  it  is  empowered  by  the  act  of  April  16,  1869,  to  interfere 
with  the  rights  and  ownership  of  the  city,  and  threatens  to  fill 
with  earth  a  portion  of  the  bed  of  the  lake  in  front  of  fractional 
sections  ten  and  fifteen,  and  to  take  possession  of  and  use  the 
same  for  wharfage,  dockage  and  landing  purposes;  that  the 
intrusion  thus  threatened  would  inflict  a  peculiar  damage  upon 
the  city;  that  the  claims  and  threats  of  the  said  company  throw 
doubts  and  clouds  upon  the  city's  title,  prevent  it  from  making 


46 

an  advantageous  use  of  its  riparian  rights  and  developing  its 
harbor,  thereby  inflicting  injuries  which  can  be  relieved  only 
in  a  court  of  equity. 

The  relief  prayed  for  is,  that  the  city's  ti'le  to  the  portion  of 
fractional  sections  ten  and  fifteen  thereinbefore  described  be 
adjudicated  by  the  court;  that  the  city  may  be  declared  to  be 
the  owner  in  fee  thereof,  and  of  the  riparian  rights  thereunto 
appertaining,  and  to  have  the  sole  and  exclusive  right  to  de- 
velop the  harbor  by  the  construction  of  docks,  wharves  and 
levees,  and  "  the  disposition  of  said  rights  by  lease  or  other- 
wise, as  authorized  by  law;"  that  the  Railroad  Corapati}'  be 
enjoined  from  interfering  with  the  city's  rights  and  ownership, 
as  aforesaid,  and  that  such  further  and  other  relief  may  be 
granted  as  shall  be  agreeable  to  equity.      (Rec,  108-117.) 

The  State's  Answer  to  the  Cross-bill.  The  State 
denies  that  any  part  of  fractional  section  fifteen,  lyin<* 
east  of  the  east  line  of  Michigan  avenue  was  included  in 
the  subdivision  made  by  the  canal  commissioners  in  1836,  ex- 
cept block  23;  it  also  denies  that  the  plat  became  under  the 
laws  of  the  State,  then  in  force,  a  conveyance  of  that  part  of 
the  fractional  section  to  the  city  of  Chicago,  or  that  the  city  is 
or  ever  has  been  the  owner  thereof  as  claimed  in  the  cross- 
bill. It  insists  that  the  canal  commissioners  had  no  authority 
to  dedicate  the  said  land  to  public  use,  and  denies  that  the  leg- 
islature did  or  could  ratify  any  such  pretended  dedication. 

It  admits  that  the  plat  of  "  Fort  Dearborn  Addition  "  was 
made,  certified  and  recorded  in  conformity  to  the  laws  of  the 
State,  and  that  the  fee  of  all  streets,  avenues,  alleys  and  pub- 
lic grounds  shown  thereon  passed  to  the  city  by  virtue  of  the 
plat. 

It  denies  that  the  city  is  or  ever  has  been  entitled  to  the 
rights  of  a  riparian  owner  on  the  shore  of  the  lake  in  front  of 
fractional  section  fifteen,  but  says,  on  the  contrary,  that  the 
State  is  and  always  has  been  the  owner  of  all  that  part  of  the 
fractional  section  adjacent  to  the  lake,  north  of  block  23,  and 
is  entitled  to  all  the  riparian  rights  and  privileges  appurtenant 
thereto. 

It  denies  any  right  or  ownership  in  the  city  which  author- 
izes or  permits  it  to  avail  itself  of  the  dock  frontage  between 
Madison  street  and  Park  Row;  and  insists  that  the  use  of  the 


47 

so-called  public  ground  on  the  lake  front  in  fractional  section 
fifteen  has  always  been  subject  to  the  paramount  right  of  the 
State  at  any  time  to  put  a  stop  to  the  same.    (Rec,  1 44-1 51.) 

The  Railroad  Company's  Answer  to  the  Cross-bill. 
The  respondent  admits  that  the  plat  of  fractional  section 
fifteen  included  the  whole  fractional  section,  and  that  all 
that  portion  of  the  tract  designated  on  the  plat  as  Michigan 
avenue  became  thereby  dedicated  to  public  use;  but  it  denies 
that  any  beneficial  interest  in  the  land  became  vested  in  the 
City  of  Chicago,  or  that  the  city  ever  had  or  held  any  inter- 
est therein,  except  as  a  mere  naked  trustee  for  public  uses; 
such  uses  being  at  all  times  subject  to  the  control  and  disposi- 
tion of  the  State  legislature. 

It  admits  that  the  legislature  by  the  Acts  of  February  18, 
1861  and  February  13,  1863  ratified  and  confirmed  the  setting 
apart  of  the  said  land  for  public  uses,  but  it  denies  that  the 
city  acquired  by  either  of  said  Acts  any  other  or  greater  in- 
terest in  the  land  than  it  had  previously  held. 

It  admits  the  making  and  recording  of  the  plat  of  Fort  Dear- 
born Addition  to  Chicago  in  1839,  but  whether  the  plat  oper- 
ated as  a  conveyance  to  the  city  of  the  streets  and  public 
grounds  thereon  designated,  or  is  evidence  only  of  a  dedication 
at  common  law,  the  respondent  leaves  to  the  judgment  of  the 
court  upon  such  proofs  as  may  be  presented. 

It  denies  that  the  city  is  or  has  been  entitled  to  the  rights 
of  a  riparian  owner  on  the  shore  of  the  lake  in  front  of  frac- 
tional sections  ten  and  fifteen,  or  that  by  virtue  of  any  law  of 
the  State  referred  to  in  the  cross-bill  it  has  been  charged  with 
the  duty  of  developing,  protecting  or  controlling  the  harbor, 
or  endowed  with  the  requisite  powers  for  so  doing,  or  that  it 
is  now  or  ever  has  been  able,  under  the  constitution  and  laws 
of  Illinois,  to  acquire  funds  for  such  purpose. 

It  alleges  that  whatever  interest  or  title  the  city  may  have 
acquired  to  the  open  ground  in  fractional  sections  ten  and 
fifteen,  it  acquired,  and,  so  far  as  the  land  is  undisposed  of,  still 
holds  the  same  as  a  naked  trustee  for  the  use  and  benefit  of  the 
public,  and  as  a  municipal  corporation  organized  for  the  pur- 
poses of  local  government  in  aid  of  and  as  an  agency  for  the 
State  of  Illinois;  that  such  tit le  and  interest  has  been  at  all 
times   subject  to  the  control  and  disposition  of  the  legislature, 


48 

and  that  the  city  cannot  set  up  any  claim,  either  as  trustee  or 
otherwise,  as  against  the  Acts  and  grants  of  the  State. 

It  further  alleges  that  by  the  location  of  the  railroad  in 
front  of  fractional  section  fifteen  and  that  part  of  fractional 
section  ten  south  of  Randolph  street,  a  strip  of  land  two  hun  ■ 
dred  feet  in  width  was  interposed  between  the  public  ground 
and  the  lake,  to  which  the  respondent  acquired  title  by  virtue 
of  the  grant  from  the  State  in  its  charter,  and  that  it  thereby 
became  and  ever  since  has  been  and  still  is  entitled  to  all  the 
rights  and  privileges  of  a  riparian  owner  in  respect  to  the  sub- 
merged land  lying  east  of  and  adjacent  thereto. 

The  respondent  insists  that  the  Act  of  April  16,  1869,  took 
effect  as  a  law  and  contract  of  the  State,  according  to  the  teams 
and  conditions  thereof,  upon  its  passage  by  the  legislature; that 
it  was  competent  for  the  legislature  to  make  the  grants 
therein  contained;  that  the  respondent  had  full  power  and  au- 
thority to  accept  them,  and  if  there  was  any  incapacity  in  this 
respect  under  its  original  charter,  the  infirmity  was  cured  by 
the  said  Act  itself;  that  the  consent  of  the  city  was  not  neces- 
sary to  the  acquisition  by  the  respondent  of  the  rights  and  in- 
terests thereby  granted;  that  the  grants  so  made  were  formally 
accepted  by  the  respondent  before  the  passage  of  the  repeal- 
ing Act  of  April  15,  1873,  and  that  the  last-mentioned  Act  is 
inoperative  and  void  for  the  same  reasons  which  are  set  forth 
in  its  answer  to  the  amended  information.    (Rec,  1 51-163.) 


THE    DECREE. 

It  is  Found  and  Adjudged:  That — saving  the  rights 
hereinafter  defined  of  the  Illinois  Central  Railroad  Company — ■ 
(1)  the  fee  of  all  the  streets,  avenues,  alleys  and  public 
grounds  shown  upon  the  plat  of  Fort  Dearborn  Addition  to 
Chicago,  including  the  upen  space  on  the  shore  of  the  lake 
south  of  the  north  line  of  Randolph  street  extended  to  the 
lake  and  north  of  the  line  between  fractional  sections  ten  and 
fifteen,  upon  which,  as  the  same  appears  upon  the  plat,  are 
the  words:  ''Public  ground,  forever  to  remain  vacant  of 
buildings";  and  (2)  the  fee  of  that  part  of  fractional  section 
fifteen  which  is  bounded  on  the  north  by  the  line  between 
fractional  sections  ten  and  fifteen,  on  the  west  by  the  west  line 
of   Michigan   avenue,   on    the  east  by  Lake  Michigan,  and  on 


49 

4- 

the  south  by  the  north  line  of  block  23,  as  the  same  appears 
on  the  plat  of  the  canal  commissioners'  subdivision  acknowl- 
edged June  13,  1836;  and  (3)  the  fee  of  all  the  made  or  re- 
claimed ground  as  it  now  exists  and  as  it  appears  on  the 
Morehouse  map,  east  of  Michigan  avenue  and  between  ihe 
north  line  of  Randolph  street  extended  to  the  lake  and  the 
north  line  of  block  23  extended  to  the  lake,  including  the 
grounds  upon  which  rest  the  tracks  and  breakwater  con- 
structed by  the  Railroad  Company  between  said  last  men- 
tioned lines  on  the  lake  front,  and  including  the  small  triangular 
piece  of  ground  east  of  the  tracks  and  breakwater  of  the 
Company  between  the  north  lines  of  Washington  and  Monroe 
streets  extended  to  the  lake,  and  marked  on  the  Morehouse 
map  "Built  1873," — are  all  in  the  city  of  Chicago  in  trust  for 
public  use. 

That  the  city  of  Chicago,  as  riparian  owner  of  said  grounds 
on  the  east  or  lake  front  of  said  citv,  between  the  north  line  of 
Randolph  street  and  the  north  line  of  said  block  23,  each  pro- 
duced to  Lake  Michigan,  and  in  virtue  of  authority  to  that  end 
conferred  by  its  charter,  has,  among  other  powers,  the  power 
to  construct  and  keep  in  repair  on  said  lake  front,  east  of  said 
premises  within  the  lines  last  given,  and  in  such  manner  as 
may  be  consistent  with  law,  public  landing  places,  wharves, 
docks  and  levees,  subject,  however,  in  the  execution  of  that 
power,  to  the  authority  of  the  State  by  legislation  to  prescribe 
the  lines  beyond  which  piers,  docks,  wharves  and  other  struct- 
ures, other  than  those  erected  by  the  General  Government, 
may  not  be  extended  into  the  waters  of  the  harbor  that  are 
navigable  in  fact,  and  to  such  supervision  and  control  as  the 
United  States  may  rightfully  exercise  in  and  over  said  harbor, 
and  subject  also  to  the  enjoyment  by  the  Illinois  Central  Rail- 
road Company  of  the  rights  now  to  be  defined  and  decided. 

That  the  Illinois  Central  Railroad  Company  is  the  ovvner  in 
fee  of  all  the  wharves,  piers  and  other  structures  erected  by  it 
in  the  city  of  Chicago,  east  of  Michigan  avenue,  south  of  Chi- 
cago river,  and  north  of  the  north  line  of  Randolph  street  ex- 
tended eastwardly,  as  shown  upon  the  Morehouse  map  (made 
part  of  the  decree),  including  the  station  grounds  lying  west 
of  the  slip  C,  the  pier  marked  C  lying  east  of  slip  C  and  rep- 
resented upon  the  Morehouse  map  to  have  been  built  in  1867, 
and  piers  1,  2  and  3,  lying  east  of  pier  C  last  men- 
tioned and  represented    upon  said  map   to  have    been  built  as 


5o 

follows:  pier  1  in  1872  and  1873,  pier  2  in  1881,  and  pier 
3  in  1880,  and  is  also  tmtitled  to  the  use,  for  purposes  of  its 
business,  of  the  slips  marked  on  said  Morehouse  map. 

That  said  Company  is  likewise  the  owner  in  fee  of  all  the 
wharves,  piers  and  other  works  constructed  by  it  east  of  its 
main  tracks  between  the  north  line  of  block  23  in  fractional 
section  fifteen  and  the  center  line  of  Sixteenth  street  extended, 
including  the  pier  or  line  of  piling  represented  on  the  More- 
house map  to  have  been  built  in  1870,  and  the  station  grounds 
lying  west  of  the  said  pier  and  contiguous  thereto;  also  of  the 
wharf  projecting  into  the  lake  from  the  grounds  last  mentioned 
and  represented  upon  the  Morehouse  map  to  have  been  built 
in  1885;  which  said  wharves  and  other  works  so  constructed 
and  so  far  as  constructed  are  lawful  structures  and  not  en- 
croachments upon  the  domain  of  the  State  of  Illinois,  or  upon 
the  public  right  of  navigation,  or  upon  the  property,  interests 
f.r  estate  of  the  city  of  Chicago. 

Thai  the  present  occupancy  and  use  by  the  Illinois 
Central  Railroad  Company,  for  purposes  of  right  of  way  and 
not  otherwise,  of  two  hundred  feet  in  width  of  ground  north  of 
the  southern  boundary  of  the  open  space  known  as  Lake  Park 
(the  west  line  of  said  ground  being  400  feet  from  and  parallel 
with  the  west  line  of  Michigan  avenue),  and  its  occupancy  and 
use  for  like  purposes  of  the  two  triangular  pieces  of  ground 
immediately  south  of  Randolph  street  and  east  of  the  Com- 
pany's present  tracks,  one  of  them  being  east  of  the  break- 
water and  marked  "Built  1873",  are  in  accordance  with  law 
and  the  provisions  of  certain  ordinances  of  the  city  of  Chicago 
passed  July  14,  1852,  September  10,  1855,  and  September   15, 

1856. 

That  said  Company  is  entiiled  to  the  use  in  perpetuity  of 
the  said  two  hundred  feet  in  width  and  said  two  triangular 
pieces  of  ground  last  described  for  purposes  of  a  right  of  way 
and  not  otherwise,  subject  to  such  regulations  in  respect  to 
said  use  as  the  city  of  Chicago  or  the  State  of  Illinois  mav  le- 
gally establish,  and  subject  to  the  terms  and  conditions  of  said 
ordinances  of  1852,  1855  and  1856,  except  that  if  the  city 
could  consistently  with  the  charter  of  said  Company  grant  to 
it,  as  by  said  ordinance  of  1852  it  assumed  to  do,  the  right  to 
use  lor  its  line  of  road  and  other  works  necessary  to  protect 
the  same  from  the  lake  a  width  of  300  feet  from  the  southern 
boundary  of  Lake  Park  near  Twelfth  street  to  the  north  line  of 


Si 


4< 


Randolph  street,  the  said  Company  has  elected  to  appropriate 
for  such  purposes  a  width  of  only  200  feet,  and  cannot  now, 
without  further  license  from  proper  public  authority,  appro- 
priate a  greater  width. 

That  the  bridge  or  viaduct  constructed  by  the  Illinois  Cen- 
tral Railroad  Company  over  its  tracks  and  grounds  at  the  foot 
of  Randolph  street,  with  the  approaches  thereto,  is  a  lawful 
structure,  having  been  erected  in  conformity  to  the  provisions 
of  the  ordinance  legally  passed  by  the  city  council  of  Chicago 
July  12,  1880. 

That  the  third  section  of  the  Act  of  the  General  Assembly 
of  the  State  of  Illinois  passed  April  16,  1869,  entitled  "  An 
Act  in  relation  to  a  portion  of  the  submerged  lands  and  Lake 
Park  grounds,  lying  on  and  adjacent  to  the  shore  of  Lake 
Michigan,  on  the  eastern  frontage  of  the  City  of  Chicago," 
so  far,  at  least,  as  it  confirms  "  the  right  of  the  Illinois  Central 
Railroad  Company,  under  the  grant  from  the  State  in  its 
charter,  .  .  .  and  under  and  by  virtue  of  its  appropri- 
ation, occupancy,  use  and  control,  and  the  riparian  ownership 
incident  to  such  grant,  appropriation,  occupancy,  use  and 
control,  in  and  to  the  lands  submerged  or  otherwise,  lying 
east  of  the  s  lid  line  running  parallel  with  and  400  feet  east  of 
the  west  line  of  Michigan  avenue,  in  fractional  sections  ten 
and  fifteen,"  is  a  valid  and  constitutional  exercise  of  legislat- 
ive power,  and  legalizes  as  well  what  was  done  by  said  com- 
pany prior  to  April  16,  1869,  in  the  way  of  filling  in  the  lake 
and  constructing  wharves,  piers,  tracks,  warehouses  and  other 
works  between  the  Chicago  river  and  the  north  line  of  Ran- 
dolph street  extended  eastwardly,  as  its  occupancy  and  use 
for  way  ground  of  the  said  triangular  pieces  of  ground  imme 
diately  south  of  Randolph  street;  and  that  the  subsequent  Act 
of  the  General  Assembly  of  Illinois  passed  April  15,  1873,  in 
so  far  as  it  sought,  by  repealing  the  said  Act  of  April  16,  1869, 
to  revoke  or  annul  said  confirmatory  clause  of  the  last  named 
Act,  was  void  under  the  constitution  both  of  Illinois  and  the 
United  States.  But  the  court  is  of  opinion,  and  so  adjudges 
and  decrees,  that  the  said  Act  of  April  15,  1873,  repealing 
said  Act  of  April  16,  1869,  had  the  effect  in  law  to  withdraw 
from  said  Railway  Company  the  grant  to  it,  its  successors  and 
assigns,  by  the  third  section  of  said  Act  of  April  16,  1869, 
of  "  all  the  right  and  title  of  the  State  of  Illinois  in  and  to  the 
submerged    lands    constituting  the    bed    of     Lake     Michigan 


52 

and  lying  east  of  the  tracks  and  breakwater  of 
the  Illinois  Central  Railroad  Company  for  the  distance 
of  one  mile,  and  between  the  south  line  of  the  south  pier  ex- 
tended eastwardly  and  a  line  extended  eastward  from  the 
south  line  of  lot  twenty-one,  south  of  and  near  to  the  round- 
house and  machine  shops  of  said  Company,  in  the  south  di- 
vison  of  the  city  of  Chicago,"  and  to  reinvest  the  State  with 
such  right  and  title  as  it  had  in  and  to  the  said  premises  prior 
to  the  passage  of  said  Act  of  April  16,  1869;  and  said  repealing 
Act  had  the  further  effect  to  withdraw  from  said  Company  the 
additional  powers  conferred  upon  it  by  said  Act  of  April  16, 
1869  to  improve  the  harbor  of  Chicago  and  engage  in  the 
business  of  constructing  and  maintaining  wharves,  piers  and 
docks  for  the  benefit  of  commerce  and  navigation  generally, 
and  not  in  the  prosecution  of  its  business  as  defined  and  limited 
by  its  original  charter  and  the  laws  of  the  State,  saving,  how- 
ever, to  said  Company,  as  unaffected  by  said  repeal,  the  right 
to  hold  and  use  as  part  of  its  way-ground  or  right  of  way,  and 
not  otherwise,  the  before  mentioned  part  of  the  submerged 
lands  east  of  its  breakwater,  between  Monroe  and  Washington 
streets  extended  eastwardly,  which  was  reclaimed  from  the 
lake  in  1873,  presumably  upon  the  faith  of  the  Act  of  1869, 
and  is  marked  on  the  Morehouse  map  with   the   words  '•  Built 

1873." 

It  is  further  ordered,  adjudged  and  decreed,  that  the  Illinois 
Central  Railroad  Company  be  perpetually  enjoined  from 
erecting  structures  in  or  filling  with  earth  or  other  materials 
any  portion  of  the  bed  of  Lake  Michigan  as  it  now  exists,  and 
as  shown  en  said  Morehouse  map,  east  or  in  front  of  said  frac 
tional  sections  ten  and  fifteen — that  is,  east  or  in  front  of  the 
grounds  now  occupied  and  used  by  it,  between  the  Chicago 
river  and  the  center  line  of  Sixteenth  street,  extended  eastwardly, 
except  that  said  Company  may  complete  the  slip  or  basin  al- 
ready commenced  immediately  north  of  Sixteenth  street  ex- 
tended, with  a  wharf  on  each  side  of  it  not  exceeding  100  feet 
in  width  in  each,  where  vessels  coming  into  such  slip  or  basin 
may  load  and  unload,  and  upon  which  tracks  of  the  Company 
may  be  laid.      (Rec,  220-225.) 


53 


Assignment  of  Errors 

The  Illinois  Central  Railroad  Company  assigns  for  error: 

i.  That  part  of  the  said  decree  by  which  it  is  found  and  ad- 
judged, that  (saving  the  rights  thereinafter  defined  of  the  Illi- 
nois Central  Railroad  Company)  the  fee  of  all  the  made  or  re- 
claimed ground,  as  it  now  exists  and  as  it  appears  on  the  More- 
house map  (made  a  part  of  the  decree),  east  of  Michigan  av- 
enue and  between  the  north  line  of  Randolph  street  extended 
to  Lake  Michigan  and  the  north  line  of  block  twenty-three  ex- 
tended to  the  lake,  including  the  grounds  upon  which  rest  the 
tracks  and  breakwater  constructed  by  said  Company  on  the 
lake  front  between  said  last  named  lines,  and  including  the 
small  triangular  piece  of  ground  east  of  the  present  tracks  and 
breakwater  of  said  Company  between  the  north  lines  of  Wash- 
ington and  Monroe  streets  extended  to  the  lake,  and  marked 
on  the  Morehouse  map  with  the  words  "Built  1873,"  are  au<  m 
the  city  of  Chicago  in  trust  for  public  use;  and  that  the  said 
city  of  Chicago,  as  riparian  owner  of  said  grounds  on  the  east 
or  lake  front  of  said  city  between  the  north  line  of  Randolph 
street  and  the  north  line  of  said  block  twenty -three,  each  of  said 
lines  being  produced  to  the  lake,  and  in  virtue  of  authority  to 
that  end  conferred  by  its  charter,  has  among  other  powers  the 
power  to  construct,  erect  and  keep  in  repair  on  said  lake  front 
east  of  said  premises  within  the  lines  last  given,  and  in  such 
manner  as  may  be  consistent  with  law,  public  landing  places, 
wharves,  docks  and  levees. 

2.  That  part  of  the  said  decree  by  which  it  is  found  and  ad- 
judged that,  if  the  city  of  Chicago  could  consistently  with  the 
charter  of  the  Illinois  Central  Railroad  Compan}',  "  grant  to 
it — as  by  said  ordinance  of  1852  it  assumed  to  do — the  right 
to  use  for  its  line  of  road  and  other  works  necessary  to  pro- 
tect the  same  from  the  lake,  a  width  of  300  feet  from 
the  southern  boundary  of  Lake  Park  near  Twelfth  street  to 
the  north  line  of  Randolph  street,  the  said  Company  has 
elected  to  appropriate  for  such  purposes  a  width  of  only  200 
feet,  and  cannot  now  without  further  license  from  proper  pub- 
lic authority  appropriate  a  greater  width." 

3.  That  part  of  the  said  deciee  by  which  it  is  found  and 
adjudged,  that  the  Act  of  the  General  Assembly  of  the  State 
of  Illinois  passed  April   15,  1873,  repealing  the  prior  Act  of  the 


.  54 

General  Assembly  of  said  State  passed  April  16,  1869,  en- 
titled "  An  Act  in  relation  to  a  portion  of  the  submerged  lands 
and  Lake  Park  grounds  lying  on  and  adjacent  to  the  shore 
of  Lake  Michigan,  on  the  eastern  frontage  of  the  City  of 
Chicago,"  had  the  effect  in  law  to  withdraw  from  said  Rail- 
road Company  the  grant  to  it,  its  successors  and  assigns,  by 
the  third  section  of  said  Act  of  April  16,  1869,  of  "all  the 
right  and  title  of  the  State  of  Illinois  in  and  to  the  submerged 
lands  constituting  the  bed  of  Lake  Michigan,  and  lying  east 
of  the  tracks  and  breakwater  of  the  Illinois  Central  Railroad' 
Company  for  a  distance  of  one  mile,  and  between  the  south 
line  of  the  south  pier  extended  eastwardly  and  a  line  extended 
eastward  from  the  south  line  of  lot  21,  south  of  and  near  to  the 
round-house  and  machine  shops  of  said  Company,  in  the 
south  division  of  said  City  of  Chicago,"  and  to  reinvest  the 
State  with  such  right  and  title  as  it  had  in  and  to  said  premises 
prior  to  the  passage  of  said  Act  of  April  16,  1869;  and  that 
said  repealing  act  had  the  further  effect  to  withdraw  from  said 
Company  the  additional  power  conferred  upon  it  by  said  Act 
of  April  16,  1869,  to  improve  the  harbor  of  Chicago  and  to 
engage  in  the  business  of  constructing  and  maintaining 
wharves,  piers  and  docks  for  the  benefit  of  commerce  and 
navigation  generally,  and  not  in  the  prosecution  of  its  business 
as  defined  and  limited  by  its  original  charter  and  the  laws  of 
the  State. 

4.  That  part  of  the  said  decree  by  which  it  is  ad- 
judged and  decreed,  that  the  Illinois  Central  Railroad  Com- 
pany be  perpetually  enjoined  from  erecting  structures  in  or 
filling  with  earth  or  other  materials  any  portion  of  the  bed  of 
Lake  Michigan,  as  it  now  exists  and  as  shown  on  said  More- 
house map,  east  or  in  front  of  said  fractional  sections  ten  and 
fifteen — that  is,  east  or  in  front  of  the  grounds  now  occupied 
and  used  by  it  between  the  Chicago  river  and  the  center  line 
of  Sixteenth  street  extended  eastwardly — except  that  said 
Company  may  complete  the  slip  or  basin  already  commenced 
immediately  north  of  Sixteenth  street  extended,  with  a  wharf 
on  each  side  of  it  not  exceeding  100  feet  in  width  in  each, 
where  vessels  coming  into  such  slip  or  basin  may  load  and 
unload,  and  upon   which  tracks  of  the  Company  may  be  laid. 


I 

55 

All  of  which,  saving  the  exception  aforesaid  relating  to  the 
completion  of  the  slip  or  basin  immediately  north  of  Sixteenth 
street  extended,  with  a  wharf  on  each  side  of  it,  is,  as  appel- 
lant is  advised  and  respectfully  submits,  erroneous.  (Rec, 
652-654.) 

The  Attorney   General  of  the  State   assigns  for  error: 

That  the  court  erred  in  sustaining  the  validity  of  the  Act  of 
April  16,  1869,  and  in  confirming  the  title  of  the  Illinois  Cen- 
tral Railroad  Company  to  the  portion  of  the  submerged  lands 
reclaimed  by  said  Company  prior  to  the  repeal  of  said  Act. 
(Rec,  657.) 


56 


BRIEF. 

i.  The  railroad  company  is  charged  in'  the  information 
with  an  invasion  of  the  proprietary  interest  of  the  State  in  the 
bed  of  the  lake.  The  encroachments  complained  of  are  upon 
Xkvt  jus -privatum  or  right  of  property  asserted  by  the  State, 
and  not  upon  the  jus publicum  or  governmental  control  over 
navigable  waters  vested  in  the  State  for  public  purposes. 

There  is  a  broad  distinction  between  a  violation  of  the  public 
right  in  navigable  waters  and  an  invasion  of  the  proprietary 
interest  of  the  sovereign.  The  one  creates  a  public  nuisance; 
the  other  a  purpresture. 

Gould  on  Waters,  Sec.  21. 

Kerr  on  Injunctions,  395. 

To  constitute  a  public  nuisance,  there  must  be  damage  to 
the  public  right  of  navigation.  No  charge  of  that  nature  is 
preferred  in  the  information,  nor  is  any  proof  which  would 
sustain  such  a  charge  to  be  found  in  the- record.  The  acts 
complained  of  are  simply  trespasses  on  lands,  once  under  water, 
claimed  to  be  the  property  of  the  State. 

It  is  alleged  in  the  information,  that  the  claims  made  by  the 
railroad  company  "  are  a  great  and  irreparable  injury  to  the 
"  State  of  Illinois  as  a  proprietor  and  owner  of  the  bed  of  the 
"  lake,  throwing  doubts  and  clouds  upon  its  tide  thereto  and 
"  preventing  an  advantageous  sale  or  oiher  disposition  thereof  "; 
and  in  the  prayer  for  relief  the  State  asks,  that  its  title  "  may 
"  be  established  and  confirmed,  that  the  claims  made  by  the 
"  said  railroad  company  •  •  •  may  be  declared  to  be 
"  unfounded  and  without  force,  and  that  the  clouds  and  doubts 
"  cast  thereby  upon  the  title  of  the  State  be  removed  •  • 
"  and  that  the  State  of  Illinois  may   be   declared   to  have   the 


J  i 

57 

"  sole  and  exclusive  right  to  develop  the  harbor  of  Chicago  by 
"  the  construction  of  docks,  wharves  etc.,  and  to  dispose  of  such 
"  rights  at  its  pleasure." 

To  make  out  a  case  the  State  must  establish  a  legal  title  and 
right  of  possession  to  the  premises  in  controversy. 

II.  The  complainants  allege  and  the  respondent  admits, 
that  upon  the  admission  of  Illinois  into  the  Union  in  1818  the 
title  to  the  bed  of  Lake  Michigan,  or  so  much  of  it  as 
lies  within  the  boundaries  of  the  State,  became  vested  in  the 
State. 

Upon  the  separation  of  the  British  Colonies  in  America 
from  the  mother  country,  they  succeeded  as  sovereign  States 
to  the  title  of  the  crown  in  the  tide  waters  within  their  terri- 
torial limits.  Both  the  jus  publicum  and  the  jus  -privatum, 
which  before  then  had  been  vested  in  the  crown  and  parlia- 
ment, or  in  the  local  governments  established  under  the  royal 
sanction,  became  vested  in  the  several  States.  They  acquired 
not  only  the  ownership  of  the  soil  under  navigable  waters,  but 
also  the  legislative  authority  to  regulate  and  control  the  rights 
of  the  public.  All  the  prerogatives  and  powers  which  before 
belonged  either  to  the  crown  or  parliament,  became  immediately 
vested  in  the  State. 

Martin  v.   Waddell,  16  Peters,  367. 

Smith  v.  Maryland,  18  How.,  71. 

Commonwealth  v.  Alger,  7  Cush.,  53. 

Nichols  v.  Boston,  98  Mass.,  39. 

People  v.  New  York  Ferry  Co.,  68  N.  Y.,  71. 

Langdonv.  Mayor  of  New  York,  93  N.  Y.,  129. 

Stevens  v.  Patterson  and  Newark  R.  R.  Co.,  34 
N.J.  Law,  532. 

Gould  on  Waters,  Sec.  32. 


5o 

The  States  since  admitted  into  the  Union  have  the  same  pro- 
prietary rights,  sovereignty  and  jurisdiction  in  and  over  navig- 
able waters  within  their  respective  limits  and  the  soil  under 
them,  as  the  original  thirteen  States. 

Pollards'  Lessee  v.Hagan,  3   How.,  2i2s 
Goodtille  v.  Kibbe,  9  How.,  471. 
Den  v.  Jersey  Com-pany,  15  How.,  426. 
Weber  v.  Harbor  Commissioners,  18  Wall.,  57- 
Knight  v.   U.  S.    Land  Association,  142   U.   S., 
161. 

The  foregoing  cases  relate  to  lands  under  tide  waters;  but 
the  principles  enunciated  are  equally  applicable  to  navigable 
waters  above  the  flow  of  the  tide. 

County    of  St.    Clair  v.    Lovingston,  23  Wall., 

46. 

Barney  v.  Keokuk,  94  U.  S.,  324. 
Packer  v.  Bird,  137  U.  S.,  661. 
Hardin  v.   Jordan,  140  U.  S.,  371. 

Like  all  other  property  belonging  to  the  State,  land  so  situ- 
ated may  be  dealt  with  and  disposed  of  according  to  the  pleas- 
ure of  the  legislature,  subject  only  to  the  rights  incident  to 
private  ownership  of  land  on  the  shore,  and  to  the  exercise  of 
the  authority  possessed  by  congress  over  navigable  waters  by 
virtue  of  its  power  to  regulate  commerce  with  foreign  nations, 
and  among  the  several  States. 

By  the  Constitution  of  Illinois  in  force  from  1848  to  1870, 
the  general  assembly  was  invested  with  full  legislative  author- 
ity. (Article  3,  Section  1.)  It  is  an  established  principle  of 
public  law  in  the  United  States  that  the  legislature  of  a  State 
may  enact  any  law  on  any  subject,  unless  restricted  by  some 
limitation  in  the  State  or  Federal  constitution.  It  has,  in  gen- 
eral,  supreme  control  over  the  property  and  revenues  of  the 


*  •■-- 


59 

State,  and  may  dispose  of  the  property  of  the  State  in  naviga- 
ble waters  in  any  way  which  will,  in  its  opinion,  promote  the 
interests  of  the  public. 

Langdon  v.  Mayor  of  Nezv  York,  93  N.  Y., 
129,   i$6. 

Kerr  v.  West  Shore  Railroad  Co.,  127  N.  Y., 
269. 

Lyman  v.  Gedney,  114  111.,  388. 

Harris   v.  Board  of  Supervisors,  105    111.,  445. 

Cairo  and  St.  Louis  R.  R.  Co.  v.   Warrington, 

9i  III,  157. 

Mason  v.   Wait,  4  Scam.,  127. 

Nichols  v.  Boston,  98  Mass.,  39. 

Hoboken  v.  Penn.  Railroad  Co.,  124  U.  S.,  657. 

Pound  v.  Turch,  95  U.  S.,  459. 

City  of  Nezv  York  v.  Miln,  11  Peters,  103. 

Cooley's  Const.  Limitations,  87-89. 

III.  The  Illinois  Central  Railroad  Company  was  author- 
ized and  required  by  its  charter  to  lay  out  and  construct  a 
railroad  into  the  city  of  Chicago.  [Ante^  p.  5.)  To  aid  in 
building  the  road,  extensive  grants  of  land  were  made  by  the 
State  to  the  Company — -among  them,  the  following: 

"  Sec.  3.  The  said  corporation  shall  have  right  of  way 
"  upon,  and  may  appropriate  to  its  sole  use  and  control  for  the 
"  purposes  contemplated  herein,  land  not  exceeding  200  feet 
"  in  width,  through  its  entire  length;  may  enter  upon  and  take 
"  possession  of  and  use  all  and  singular  any  lands,  streams  and 
"  materials  of  every  kind,  for  the  location  of  depots  and  stop- 
"  ping  stages,  for  the  purpose  of  constructing  bridges,  dams, 
"  embankments,  .  .  .  station  grounds,  .  .  .  turn- 
"  outs,  engine-houses,  shops  and  other  buildings  necessary  for 
"  the   construction,  completing,  altering,  maintaining,  preserv- 


60 

"  ing  and  complete  operation  of  said  road.  All  such  lands, 
"  waters,  materials  and  -privileges  belonging  to  the  State,  are 
"  hereby  granted  to  said  corporation  for  said  purposes" 
[Ante,  p.  4.) 

The  effect  of  these  words  is  obviously  to  invest  the  com- 
pany with  a  complete  title  to  all  the  lands  belonging  to 
the  State,  which  should  be  required  and  taken  for  the  purposes 
mentioned. 

Potomac  Steamboat    Co.  v.  Upper  Pot.  S.  Co., 

109  U.  S.,  672,  680. 
Van  Ness  v.    City  of   Washington.  4  Pet.,  232, 
284. 

The  grant  is  not  confined  to  a  way  two  hundred  feet  in 
width;  but  the  charter  authorizes  in  express  terms  the  appro- 
priation  of  as  much  more  land  as  should  be  needed  for  station 
grounds,  turnouts,  etc.,  necessary  for  the  "  construction,  com- 
"  pleting,  altering,  maintaining,  preserving  and  complete  oper- 
"  ation  of  said  road." 

The  right  of  the  company  to  appropriate  to  its  use  the  lands 
of  the  State,  is  co-extensive  with  the  power  conferred  by  the 
same  section  of  the  charter  to  acquire  by  purchase  or  con- 
demnation the  lands  of  private  owners.  The  latter  is  a  con- 
tinuing power  which  may  be  exercised  from  time  to  time  as 
the  necessities  of  the  company  may  require. 

Chi.  and  West  Ind.  R.  R.  Co.  v.  III.  Ceu.R.  R. 
Co.  113,  111.,  156. 

Railroad  Co.  v.   Wilson,  17  111.,  123. 

N.  T.  &  H.  R.  R.  Co.,  v.  Kip,  46  N.  Y.,  546. 

Lewis  on  Eminent  Domain,  Sec.  259. 

The  charter  is  still  a  law  of  the  State.  No  attempt  has  been 
made  to  repeal  it,  or  to  restrain  by  subsequent  legislation  the 
exercise   of    the    right     to     enter    upon   and    use    the   lands 


61 

of  the  State.  There  is  no  limitation  as  to  the  time  when, 
or  the  number  of  times,  the  right  may  be  exercised.  The  only 
limit  in  this  respect  is  the  reasonable  necessity  of  the  corpora- 
tion in  the  discharge  of  its  duty  to  the  public 


IV.  The  consent  of  the  common  council  of  Chicago  to  the 
location  of  the  railroad  within  the  city,  was  required  by  the 
eighth  section  of  the  company's  charter.  An  ordinance  grant- 
ing that  consent  was  passed  June  14,  1852,  and  a  formal  con- 
tract under  seal  was  entered  into  between  the  railroad  com- 
pany and  the  city,  in  which  it  was  covenanted  that  the  ordi- 
nance should  be  of  perpetual  obligation,  and  that  each  party 
would  abide  by  and  perform  all  the  obligations  therein  con- 
tained according  to  the  true  intent  and  meaning  thereof. 
(Record,  623-31.) 

The  assent  was  given  on  conditions  which  were  extremely 
burdensome,  but  they  have  been  fully  complied  with.  The  rail- 
road was  located  and  built  in  the  open  waters  of  the  lake  in 
front  of  fractional  sections  ten  and  fifteen,  as  directed  by  the 
common  council;  and  the  company  had  been  in  peaceable  pos- 
session of  the  grounds  appropriated  for  that  purpose,  with  the 
exception  of  a  strip  one  hundred  feet  in  width  on  the  east  side 
of  the  railroad  tracks,  for  thirty  years  before  the  commence- 
ment of  this  suit. 

By  the  terms  of  the  ordinance  the  company  was  permitted 
(Sec.  2),  "to  enter  upon  and  use  in  perpetuity,  for  its  line  of 
road  and  other  works  necessary  to  protect  the  same  from  the 
lake,  a  width  of  three  hundred  feet  from  the  southern  boun- 
dary of  the  public  ground  near  Twelfth  street  to  the  northern 
line  of  Randolph  street."  And  it  was  authorized  (Sec.  9),  to 
use  the  ground,  not  only  for  the  passage  of  trains,  but  also 
"  for  making  up   and   distributing   trains."     It  was    also   pro- 


4-  * 

62 

vided  (Sec.  3),  that  the  company  might  extend  its  works  and 
fill  out  into  the  lake,  between  Randolph  street  and  the  river, 
"  to  a  point  in  the  southern  pier  [at  the  mouth  of  the  river] 
400  feet  west  of  the  east  end  of  the  same."  Here  (Sec.  1) 
the  depot  was  to  be  located  and  such  buildings  and  slips  as 
might  be  necessary  and  convenient  for  the  company's  busi- 
ness. 

It  is  tacitly  conceded,  that  the  land  thus  authorized  to  be 
appropriated  was  "  necessary  for  the  construction,  maintain- 
ing, preserving  and  complete  operation  of  the  railroad."  It  is 
true  that  the  city  had  no  proprietary  interest  in  the  bed  of  the 
lake,  and  could  convey  none  to  the  company;  but  it  had  po- 
lice jurisdiction  over  the  waters  within  a  mile  of  the  shore, 
and  authority  to  determine  where  the  road  should  be  located. 
The  rights  of  no  private  land  owner  were  infringed,  because 
the  railroad  company  acquired  by  purchase  all  the  property 
on  the  shore  belonging  to  private  owners,  before  the  works 
were  constructed.  There  was  no  unlawful  intrusion  on  the 
domain  of  the  State,  because  by  the  terms  of  the  company's 
charter  it  had  the  right  to  enter  upon  and  appropriate  any 
lands  of  the  State  which  were  necessary  for  the  purposes 
above  mentioned. 

That  the  charter  conferred  the  right  to  take  land  of  the  State 
covered  by  the  waters  of  the  lake,  was  judicially  determined 
by  the  Supreme  Court  of  Illinois,  at  the  very  outset  of  the  com- 
pany's operations. 

Soon  after  the  passage  of  the  ordinance  of  June  14,  1852, 
condemnation  proceedings  were  commenced  by  the  company 
against  certain  proprietors  of  land  on  the  shore  of  the  lake 
north  of  Randolph  street.  It  was  set  forth  in  the  petition,  that 
"  the  railroad  had  been  located  and  was  to  be  constructed  in  the 


63 

waters  of  the  lake,  along  the  margin  of  the  same,  in  front 
of  the  premises  of  the  said  parties,  and  partly  over  the 
same;  that  the  depots,  ete.,  of  said  railway  were  to  be  lo- 
cated in  the  waters  of  said  lake,  and  in  front  of  the  said  prop- 
erty." The  county  court,  in  which  the  petition  was  filed, 
refused  to  entertain  the  application  on  the  ground,  among 
others,  that  the  company  had  no  power  to  locate  its  road  in  the 
waters  of  Lake  Michigan.  It  was  also  objected,  that  the 
property  sought  to  be  condemned  was  not  required  for  the 
use  of  the  petitioner,  but  was  to  be  used  conjointly  by  it  and 
the  Michigan  Central  Railroad  Company,  a  foreign  corporation 
having  no  power  to  acquire  such  rights  in  the  State  of  Illinois. 
The  further  objection  was  urged,  that  the  premises  were  not 
required  for  any  use  authorized  by  the  charter  of  the  company, 
but  for  the  purpose  of  building  slips,  docks,  wharves,  basins 
piers  and  other  structures  appertaining  to  the  business  of  com- 
merce and  navigation.  An  application  was  then  made  to  the 
Supreme  Court  for  a  mandamus  to  compel  the  judge  of  the 
county  court  to  take  cognizance  of  the  petition.  It  wTas  decided 
that  the  company  had  the  right  by  its  charter  to  locate  the  road 
over  the  premises  in  question,  the  city  of  Chicago  having  as- 
sented. The  objections  made  were  overruled  and  a  peremp- 
tory mandamus  awarded. 

Illinois  Central  Railroad  Co.  v.  Rucker,   14  111., 

353- 

The  decision  was  made  at  the  June  Term,  1853,  and  soon 
afterwards  the  company  acquired  by  purchase  not  only  the 
property  in  question  in  that  proceeding,  but  all  the  water  lots 
on  the  east  side  of  Michigan  avenue  between  Randolph  street 
and  the  river. 

Another  important  point  must  not  escape  observation. 

Reference  was  made  in  the  opening  statement  to  the  Act  of 
February  18,  1861,  amendatory   of  the  city  charter  {antet  p. 


64 

15).  In  the  64th  section  of  that  Act  the  city  ordinance  of 
June  14,  1852,  is  plainly  referred  to;  and  it  is  there  enacted 
that  every  owner  of  a  lot  fronting  on  Michigan  avenue  shall 
have  the  right  to  enjoin  the  railroad  company  and  all  other  -per- 
sons and  corporations  from  any  violation  of  the  provisions  of  said 
ordinance,  and,  by  bill  or  petition  in  chancery,  to  enforce  the  pro- 
visions of  said  ordinance.  On  the  revision  of  the  city  charter 
in  1863  the  same  law  substantially  [ante,  p.  16)  was  re-enacted. 
By  these  enactments  the  ordinance  is  not  only  recognized  as 
valid,  but  all  persons  and  corporations  are  prohibited  from  vio- 
lating its  provisions.  There  could  not  be  a  more  effectual 
ratification.  If  any  doubt  could  exist  before  as  to  the  validity 
of  the  ordinance,  it  was  completely  removed  by  this  legislative 
action. 

The  ordinance  is  still  in  force,  and  the  contract  based  upon 
the  ordinance  is  of  perpetual  obligation.  Not  only  is  the  com- 
pany's title  secure  to  the  submerged  lands  it  has  actually  oc- 
cupied, but  the  right  of  the  company  to  the  possession  and 
use  of  the  whole  of  the  strip  three  hundred  feet  wide  it  was 
authorized  to  occupy,  as  against  either  the  city  or  the  State, 
admits  of  no  reasonable  question.  That  the  use  of  the  whole 
is  needed  to  enable  the  company  to  manage  conveniently  and 
expeditiously  its  largely  increased  traffic  is  not  disputed;  and 
the  report  made  by  the  board  of  engineers  to  the  Secretary  of 
War  in  1882  {ante  pp.  32,  33),  is  proof,  that  it  is  also  needed 
to  develop  to  the  greatest  extent  the  advantages  which  the 
proximity  of  the  railroad  to  the  harbor  can  be  made  to  afford 
to  the  general  commerce  of  the  country. 

It  is  adjudged  in  the  decree,  that  if  the  city  could  consist- 
ently with  the  charter  of  the  company  grant  the  right,  as  by 
the  ordinance  of  1852  it  assumed  to  do,  to  use  a  width  of  300 
feet  from  the  southern  boundary  of    Lake  Park  to  Randolph 


65 

street,  the  company  had  elected  to  appropriate  a  width  of  only 
200  feet,  and  cannot  now,  without  further  license  from  proper 
public  authority,  appropriate  a  greater  width.     (Record,  223.) 

Nothing  is  said  upon  this  point  in  the  opinion  of  the  court; 
but  it  is  apparent  from  the  decree  that  doubts  were  felt  whether 
the  permission  given  by  the  ordinance  to  occupy  a  width  of 
more  than  200  feet  was  consistent  with  the  company's  charter. 
It  is  believed  that  on  further  consideration  all  doubts  on  that 
question  will  be  removed.  As  before  explained,  the  grants 
made  in  the  charter  were  not  confined  to  a  way  200  feet  in 
width;  as  much  additional  land  could  be  taken  as  should  be  re- 
quired for  station  grounds,  turnouts,  etc.,  necessary  for  the 
complete  operation  of  the  road.  Nor  was  the  use  of  the  three 
hundred  feet  in  width  limited  by  the  ordinance  to  that  of  a 
mere  roadway  for  the  passage  of  trains;  works  necessary  to 
protect  the  railroad  from  the  lake  were  authorized,  and  the 
ground  could  also  be  used  as  a  yard  "for  making  up  and  dis- 
tributing trains."  The  ratification  of  the  ordinance  by  the 
legislature  must  also  have  escaped  observation.  By  this  action 
the  ordinance  became  the  act  of  the  State  as  well  as  of  the 
city,  and  no  question  as  to  its  validity  can  now  be  raised  by 
either. 

The  proof  shows  that  the  ordinance  was  accepted  by  the 
railroad  company.  The  company  did  not  immediately  occupy 
all  the  land  described;  but  the  title  to  land  is  not  lost  hy  leav- 
ing it  in  its  natural  state  without  improvement. 

Potomac  Steamboat   Co.  v.   Upper  Pot.  S.  Co., 

109,  U.  S.  672,  684. 
Boston  v.  Lecraw,  17  How.  426,  436. 
Barclay  v.  HowclVs  Lessee,  6.  Pet.  498,  504-5. 

The  company  took  possession  of  so  much  of  the  land  as 
was    then    needed.     When    more   became  necessary  for   the 


4    C 

66 

proper  conduct  of  its  business,  it  attempted  to  take  possession 
of  the  rest,  and  was  prevented,  not  by  the  interference  of  the 
city — for  the  city  did  not  object  (Rec,  402) — but  by  the 
action  of  the  War  Department  which  has  control  of  the  harbor. 
{Ante  pp.  3I~34-) 

That  there  was  any  election  by  the  company  to  relinquish 
the  right  to  the  additional  one  hundred  feet,  or  that  the  com- 
pany is  in  any  way  estopped  from  claiming  its  rights  against 
the  city  and  State,  is  a  conclusion,  we  respectfully  submit,  not 
warranted  by  any  evidence  in  the  record. 

V.  It  was  conceded  in  the  original  information,  that  the 
railroad  company  was  rightfully  in  possession  of  the  strip  of 
land  two  hundred  feet  in  width  between  Park  Row  and 
Randolph  street  (Record,  11,  15) ;  and  in  the  last  amended  in- 
formation it  is  alleged  (Record,  140)  that  theirs/  indication  of 
any  intention  to  encroach  upon  the  domain  of  the  State,  was 
the  procuring  of  the  passage  of  the  ordinances  of  September 
10,  1855  and  September  15,  1856,  which  authorized  the  taking 
for  railroad  uses  of  the  two  triangular  pieces  of  ground  near 
Randolph  street. 

Both  of  these  parcels  were  covered  at  the  time  by  the 
waters  of  the  lake,  and  have  been  since  filled  in  by  the  rail- 
road company.  The  necessity  for  the  occupation  of  the 
ground  sufficiently  appears  from  the  recitals  in  the  two  ordi- 
nances (Record,  631-34),  and  is  further  explained  by  the  testi- 
mony of  Mr.  Jeffery  (Record,  368-9).  The  strip  three  hundred 
feet  wide  described  in  the  ordinance  of  1852,  was  too  narrow 
at  the  upper  end  to  admit  of  convenient  access  to  the 
passenger-house  and  freight-yard. 

Important  conditions  were  attached  to  the  consent  granted 
by  the  ordinance  of  1855  The  company  was  required  to  lay 
out  upon    its    own  land  a  street   fifty  feet   wide  west  of  and 


67 

alongside  its  passenger-house,  extending  from  Randolph  street 
to  Water  street,  and  fill  the  same  up  its  entire  length  within 
two  years;  also  to  fill  up  all  the  space  between  the  rail- 
road tracks  and  the  shore  west  of  the  ground  described  in 
the  ordinance.  These  conditions  were  complied  with,  and 
the  city  and  public  have  since  had  the  benefit  of  these  improve- 
ments. 

The  city  does  not,  and  obviously  cannot,  complain  of  the 
occupation  of  these  grounds  as  an  encroachment.  The  State, 
it  is  equally  clear,  has  no  cause  of  complaint,  because  iis  con- 
sent to  the  appropriation  of  any  land  belonging  to  it,  necessary 
for  the  complete  operation  of  the  railroad,  was  given  in  express 
terms  in  the  company's  charter.  It  was  so  decided  in  the  court 
below. 

VI.  The  land  which  has  been  recovered  from  the  lake 
lying  west  of  slip  C,  between  Randolph  street  and  the  river, 
including  the  slips  A  and  B,  w  as  filled  in  with  the  consent  of 
the  city,  granted  by  the  ordinance  of  1852,  which  was  after- 
wards ratified  by  the  legislature.  The  improvements  were 
made  in  front  of  land  the  company  had  purchased  on  the  shore. 
At  the  side  of  slips  A  and  B  large  elevators  have  been 
erected,  which  furnish  necessary  facilites  for  the  storage  of 
grain  brought  to  Chicago  over  the  railroad,  and  for  the  trans- 
fer of  grain  to  vessels  engaged  in  lake  commerce.  (Record, 
358,  364-5,  387,  483-6). 

In  order  to  provide  suitable  means  for  the  shipment  and 
delivery  of  other  commodities,  slip  C  and  pier  C  were  con- 
structed in  1867;  ar,d  afterwards  piers  1,  2  and  3  were  built 
east  of  pier  C  with  the  approval  of  the  War  Department, 
which  had  at  the  time  exclusive  control  of  the  outer  harbor. 
(Ante  pp.  27,  29).  This  license  is  to  be  accepted  as  conclusive 
evidence  that  the  works  do  not  obstruct  the  public  right  of 
navigation,  but  are  advantageous  to  the  uses  for  which  the  har- 


*  rj 


68 


bor  is  designed,  and  is  in  itself   sufficient  to   justify  their  erec- 
tion. 

Pennsylvania  v.  Wheeling  Bridge  Co.,  18  How., 

421. 
South  Carolina  v.  Georgia,  93  U.  S.,  4. 
Wisconsin  v.  Dulut/1,96  U.  S.,  379. 
Boom  Co.  v.  Patterson,  98  U.  S.,  409. 
Stockton  v.   Baltimore  and  JV.    Y.  R.   Co. 

32  Fed.  Rep.,  9. 
Mississippi  Bridge    Co.    v.  Loner gan,  91   111., 
508. 

It  is  not  alleged  in  the  information,  nor  is  there  any  evidence 
in  the  record  tending  to  show,  that  these  improvements  are  in- 
jurious to  navigation.  Wharves  and  piers  in  navigable  waters 
are  not  obstructions,  but  essential  aids  to  navigation ;  and  where 
no  positive  law  is  violated  by  their  construction,  a  littoral  pro- 
prietor on  the  lake,  although  the  ordinary  water  line  is  the 
boundary  of  his  land  {Seaman  v.  Smit/1,24.  111.,  521),  has  the  right 
to  extend  them  far  enough  into  the  water  to  enable  vessels  to  lie 
alongside  and  receive  and  discharge  cargoes*.  They  are  not 
regarded  in  law  as  intrusions  upon  the  public  right,  but  as  use- 
ful structures  calculated  to  further  the  public  use  of  the  water, 
and  impliedly  licensed  by  the  State. 

Dutton  v.  Strong,  1  Black,  23. 

Railroad  Company  v.  Schurmeir,  7  Wall.,  272. 

Yates  v.  Milwaukee,  10  Wall.,  497. 

Atlee  v.  Packet  Company,  21  Wall.,  389. 

Barney  v.  Keokuk,  94  U.  S.,  324. 

Cohnv.  Wausau  Boom  Co,,  47  Wis.,  314. 

Clements  v.  Burns,  43  N.  H.,  617-21. 

The  judgment  of  the  court  below  was  in  consonance  with 
these  views;  and  in  this  particular  the  decree  is  open  to  no 
sound  objection  on  the  part  of  the  State. 


1  * 


69 

VII.  The  construction  of  the  new  piers  north  of  Randolph 
street  led  to  the  passage  of  the  ordinance  of  July  12,  1880, 
providing  for  the  extension  of  Randolph  street  and  the  erec- 
tion of  a  viaduct  across  the  railroad  tracks  to  the  base  of  pier 
3.      (Record,  646-7.) 

To  accomplish  the  purpose  for  which  the  piers  were  built, 
it  was  necessary  that  they  should  be  made  accessible  not  only 
to  vessels  navigating  the  lake  and  to  the  cars  of  the  railroad 
company,  but  also  to  wagons  and  teams  from  the  streets  of  the 
city.  The  only  safe  and  convenient  access  that  could  be  pro- 
vided for  the  latter  was  by  a  viaduct  spanning  the  railroad 
tracks.  The  ordinance  was  clearly  within  the  powers  vested 
in  the  city  council.  Ety  the  general  law  under  which  the  city 
is  incorporated,  the  council  is  authorized  in  express  terms  "  to 
lay  out  "  and  "  extend  "  streets,  and  "  to  construct  and  keep 
in  repair  bridges,  viaducts,  tunnels,  and  regulate  the  use 
thereof."  The  cost  of  constructing,  maintaining  and  repair- 
ing the  viaduct  was  thrown  upon  the  railroad  company,  while 
the  right  to  use  it  was  made  "  forever  free  to  the  public  and 
to  all  persons  having  occasion  to  pass  and  repass  thereon." 

The  viaduct  was  built  in  1881,  in  strict  accordance  with  the 
terms  of  the  ordinance.  It  has  been  maintained  since  by  the 
railroad  company,  and  the  use  of  it  has  been  free  to  the  pub- 
lic. (Record,  371-2.)  No  part  of  the  structure,  except  the 
western  approach,  is  on   land  which  was  above  water  in  1839. 

It  was  rightly  held  in  the  court  below,  that  the  viaduct  is  "  a 
"  lawful  structure  erected  in  conformity  to  the  provisions  of 
"  the  ordinance  legally  passed  by  the  city  council  of  Chicago 
"July  12,  1880" 

VIII.  The  railroad  company's  title  to  all  the  land  it  had 
reclaimed  from  the  lake  lying  east  of  the  west  line  of  the 
railway  in  fractional  sections  ten  and  fifteen,  was  confirmed  by 
the  Act  of  April  16,  1869.      [Ante,  p.  21.) 


7o 

It  is  important  to  notice  carefully  the  words  of  the  confirm- 
atory clause  in  section  three  of  that  statute.  The  right  of  the 
company  under  the  grant  from  the  State  in  its  charter  and  the 
riparian  ownership  incident  to  such  grant,  in  and  to  the  lands 
which  had  been  appropriated,  is  explicitly  recognized.  It  was 
this  right  which  the  legislature  confirmed.  If  any  doubt  could 
have  existed  before,  whether  the  company  acquired  title  to 
these  lands  hy  virtue  of  the  grant  made  by  the  State  in  the 
charter,  or  whether  it  was  entitled  to  the  littoral  rights  incident 
to  the  ownership  of  land  bordering  on  navigable  waters,  these 
questions  were  settled  by  that  statute.  If  the  title  of  the 
company  was  before  imperfect,  it  was  perfected  by  the  stat- 
ute. 

"  A  confirmation  by  a  law,  is  as  fully  to  all  intents  and  pur- 
"  poses  a  grant,  as  if  it  contained  in  terms  a  grant  de  novo." 
Str other  v.  Lucas,  12  Pet.,  411. 
Grignorfs  Lessee  v.  Astor,  2  How.,  319. 
Ryan  v.  Carter,  93  U.  S.,  78. 
Morrow  v.  Whitney,  95  U.  S.,  551. 

It  is  adjudged  in  the  decree  that  the  Act  of  April  16,  1869, 
"  so  far,  at  least,  as  it  confirms  the  right  of  the  Illinois  Central 
"  Railroad  Company,  under  the  grant  from  the  State  in  its. 
"  charter  .  .  .  and  under  and  by  virtue  of  its  appro- 
"  priation,  occupancy,  use  and  control,  and  the  riparian  owner- 
"  ship  incident  to  such  grant,  appropriation,  occupancy,  use 
"  and  control  in  and  to  the  lands,  submerged  or  otherwise, 
"  lying  east  of  the  said  line  running  parallel  with  and  four 
"  hundred  feet  east  of  the  west  line  of  Michigan  avenue,  in 
"  fractional  sections  ten  and  fifteen,  is  a  valid  and  constitu- 
"  tional  exercise  of  legislative  power,  and  legalizes  as  well 
"  what  was  done  by  said  company  prior  to  April  16,  1869,  in 
"  the  way  of  filling  in  the  lake  and  constructing  wharves,  piers, 
**  tracks,  warehouses   and  other  works,  between  the  Chicago 


7i 

"  river  and  the  north  line  of  Randolph  street,  extended  east- 
"  wardly,  as  its  occupancy  and  use  for  way  ground  of  the  two  said 
"  triangular  pieces  of  ground  immediately  south  of  Randolph 
"  street;  and  that  the  subsequent  Act  of  the  general  assem- 
"  bly  of  Illinois,  passed  April  15,  1873,  m  so  ^ar  as  n  sought 
"  by  repealing  the  said  Act  of  April  16,  1869,  to  revoke  or 
"  annul  the  confirmatory  clause  of  the  last  named  Act,  was 
"  void  under  the  constitution,  both  of  Illinois  and  of  the  United 
"  States."      (Record,  224.) 

We  do  not  question  the  soundness  of  this  judgment.  It  is 
manifestly  right,  so  far  as  it  goes;  but  it  is  apparent  that  the 
effect  of  the  confirmatory  clause  is  much  broader  than  is  there 
stated.  The  confirmation  really  covers  not  only  the  land  north 
of  Randolph  street  and  the  triangular  pieces  of  ground  re- 
ferred to,  but  also  the  land  which  the  company  had  reclaimed 
from  the  lake  south  of  Randolph  street  as  well;  and  there  is 
also  a  distict  recognition  in  the  Act  of  the  company's  "  riparian 
"ownership  incident  to  such  grant,  appropriation,  occupancy, 
"  use  and  control,  in  and  to  the  lands  submerged  or  otherwise 
"lying  east  of  the  said  line  running  parallel  with  and  four  hun- 
<'  dred  feet  east  of  the  west  line  of  Michigan  avenue,  in  frac- 
"  tional  sections  ten  and  fifteen." 

This  suggestion  will  have  an  important  bearing  upon  a 
subsequent  point  in  this  brief. 

IX.  By  the  same  Act  a  further  grant  was  made  to  the 
railroad  company  in  the  following  terms: 

"  All  the  right  and  title  of  the  State  of  Illinois  in  and  to 
"  the  submerged  land  constituting  the  bed  of  Lake  Michigan, 
"  and  lying  east  of  the  tracks  and  breakwater  of  the  Illinois 
"  Central  Railroad  Company,  for  the  distance  of  one  mile 
"  and  between  the  south  line  of  the  south  pier  extended  east- 
"  wardly  and  a  line  extended  eastward  from  the  south   line   of 


V 


72 


"  lot  2i,  south  of  and  near  to  the  round-house  and  machine 
"  shops  of  said  company  in  the  south  division  of  the  city  of 
"  Chicago,  are  hereby  granted,  in  fee,  to  the  Illinois  Central 
"  Railroad  Company,  its  successors  and  assigns.  "  (Ante, 
p.  21). 

The  grant  was  made  subject  to  these  conditions:  that  the 
title  should  be  held  bjr  the  company  in  perpetuity,  and  all  gross 
receipts  derived  from  the  use  of  the  land,  or  leasing  it,  or  the 
improvements  made  thereon,  should  form  part  of  the  gross 
proceeds,  receipts  and  income  of  the  company,  upon  which  it 
should  forever  pay  into  the  State  treasury  the  seven  per 
centum  provided  for  in  its  charier;  that  nothing  contained  in 
the  Act  should  authorize  obstructions  to  the  Chicago  harbor, 
or  impair  the  public  right  of  navigation,  or  be  held  to  relieve 
the  railroad  company  or  its  lessees  from  any  Act  of  the  gen- 
eral assembly  which  might  be  thereafter  passed  regulating  the 
rates  of  wharfage  and  dockage  to  be  charged  in  the  harbor; 
and  if  any  of  the  granted  lands,  or  the  improvements  made 
thereon,  should  be  leased  to,  or  occupied  by,  anyone  but  the 
railroad  company,  such  property  should  be  subject  to  munici- 
pal and  other  taxation  during  the  continuance  of  the  leasehold 
estate,  or  of  such  occupancy. 

It  is  manifest  that  the  legislature  intended  to  transfer,  by 
this  Act,  all  the  proprietary  interest  which  the  State  had  in  the 
granted  premises  to  the  railroad  company.  The  words  used 
in  the  granting  clause  are  words  of  present  grant,  and  import 
an  immediate  transfer  of  title.  There  is  no  subsequent  re- 
straining clause.  The  language  admits,  therefore,  of  no  other 
interpretation. 

Schulenbergv,  Harriman,  21  Wall.,  44. 
Railroad  Company  v.  United  States,  92    U.   S., 

733- 
Railroad  Company  V.Baldwin,   103  U.  S.,  426. 


«  n 

73 

Wright  v.  Roseberry,  121  U.  S.,  488. 
Deseret  Salt    Company   v.    Tarfiey,   142   U.   S., 
241. 

The  title  of  the  State  became  completely  extinguished,  and 
the  entire  estate  in  the  land,  subject  only  to  the  conditions  an- 
nexed to  the  grant,  became  vested  in  the  railroad  company. 
If  this  were  the  only  question  in  the  case,  no  one  would  think 
of  disputing  the  title  of  the  grantee.  The  efficacy  of  the  Act 
to  pass  the  title  is  in  no  way  impaired  by  its  subsequent  repeal. 

X.  It  is  erroneously  alleged  in  the  information,  that  no 
action  was  taken  by  the  railroad  company  with  reference  to 
the  grant  before  the  Act  of  1869  was  repealed. 

The  fact  is,  the  grant  was  formally  accepted,  and  notice  of 
the  acceptance  was  made  a  matter  of  record  in  the  office  of 
the  Secretary  of  State  long  before  the  passage  of  the  repealing 
Act.  [Ante,  pp.  24-5).  All  the  grants  made  to  the  company 
by  the  Act  of  1869  were  accepted  unconditionally;  and  in  the 
notice  thereof  given  to  the  State  it  was  explicitly  stated,  in 
compliance  with  the  resolution  passed  by  the  board  of  direc- 
tors, that  the  company  had  commenced  work  upon  the  shore 
of  the  lake  under  the  grants  referred  to.  Possession  was  taken 
of  the  granted  lano!,  or  so  much  of  it  as  the  United  States' 
authorities  in  charge  of  the  harbor  would  permit  the  railroad 
company  to  occupy,  and  costly  improvements  were  made  upon 
the  premises  before  the  repeal. 

It  was  objected  in  the  court  below  that  the  formal  acceptance 
was  nugatory,  because  the  action  was  taken  at  a  meeting  of 
the  board  of  directors  held  in  the  city  of  New  York.  But  the 
objection  is  untenable.  The  directors  of  a  corporation  may 
hold  their  meetings  and  transact  business  wherever  it  may  be 
most  convenient,  unless  prohibited  by  local  legislation  or  the 
company's  charter  or  by-laws. 


1  <": 


74 

i   Morawetz  on  Priv.  Corp.,  Sec.  533. 
1  Beach  on  Priv.  Corp.,  Sects.  285,  289. 
Galveston  Railroad  v.  Cowdrey,  1 1  Wall,  459. 
Handley  v.  Stutz,  139  U.  S.,  417. 
Reichwald  v.    Commercial  Hotel  Co.,    106   111., 

439- 
Saltmarsh  v.  Sftaulding,  147  Mass.,  224. 

Certainly  no  one  could  complain  of  such  action  but  the  cor- 
poration or  its  stockholders;  and  the  stockholders  at  their 
annual  meetirg  held  in  Chicago  May  31,  1871 — nearly  two 
years  before  the  passage  of  the  repealing  act — ratified  the 
resolution  of  the  directors  by  a  unanimous  vote.    (AntA,p.  25.) 

It  is,  moreover,  perfectly  well  settled  that  the  acceptance  of 
a  legislative  or  other  grant  to  a  corporation  need  not  be  evi- 
denced by  a  formal  vote  or  resolution.  It  may  be  inferred 
from  other  acts,  as  in  the  case  of  private  persons.  Grants 
beneficial  to  a  corporation  will  be  presumed  to  have  been 
accepted  on  very  slight  evidence  of  acquiescence,  if  nothing 
appear  to  the  contrary. 

Bank  of  the  Lnited  States  v.  Dandridge,  12 
Wheat.,  64,  70-72. 

Railway   Companies  v.  Keokuk  Bridge   Co.,  131 

u.  s.,  371, 382. 

RotcJi's  Wharf  Company  v.  fudd,  108  Mass., 
224. 

In  the  case  of  a  conveyance  of  land  by  a  deed  between 
private  parties,  anything  which  clearly  manifests  the  intention 
of  the  grantor  and  grantee  that  the  instrument  shall  become 
operative,  is  sufficient  to  pass  the  title.  Although  the  delivery 
of  the  deed  be  not  made  to  the  grantee,  but  to  a  stranger, 
assent  and  acceptance  on  his  part  will  be  presumed  if  the  deed 
be  for  his  benefit.  His  previous  efforts  to  obtain  a  deed,  or 
his  subsequent    expressions  of  satisfaction    after  having  pro- 


4' 

75 

cured  it,  are  sufficient  evidence  of  acceptance  by  him,  and  the 
deed  takes  effect  from  the  time  it  is  delivered  to  the  third  party 
for  his  benefit.  The  deed  does  not  derive  its  efficacy  as  a  con- 
veyance from  the  act  of  the  grantee  in  accepting,  but  from 
the  act  of  the  grantor  in  executing  it. 

Thompson  v.    Candor,  60  111.,  244. 

Dale  v.  Lincoln,  62  111.,  22. 

Gunnell  v.  Cocker  ill,  84  111.,  319. 

Concord  Bank  v.  Bellis,  10  Cush.,  276,  278. 

Brooks  v.  Marbury,  11  Wheat.,  78,  97. 

Grove  v.  Brien,  8  How.,  429,  440. 

United  States  v.  Schurz,  102  U.  S.,  378. 

2  Morawetz  on  Priv.  Corp.,  Sects.  629,  708a. 

Angell  and  Ames  on  Corp.,  Sec.  173. 

It  is  not  pretended  that  there  is  the  slightest  evidence  of  any 
refusal  by  the  company  to  accept  the  Act  of  1869;  nor  are 
any  equivocal  words  or  conduct  shown  on  the  part  of  its  direc- 
tors or  other  agents,  which  indicate  that  the  company  was 
hesitating  or  undecided  as  to  its  final  action.  A  plan  for  the 
construction  of  wharves  upon  the  submerged  lands  was  pre- 
pared as  early  as  May,  1869,  which  was  in  part  executed; 
and  the  failure  to  complete  the  work  is  attributable  solely,  as 
the  evidence  shows,  to  the  refusal  of  the  War  Department  to 
permit  any  improvements  to  be  made  by  the  company  in 
front  of  the  public  ground  between  Randolph  street  and  Park 
Row,  until  the  question  of  title  should  be  settled.  On  the  12th 
of  July,  1869,  the  first  installment  of  the  $800,000  required  to 
be  paid  to  the  city  for  the  land  granted  to  the  three  railroad 
companies  as  a  site  for  a  passenger  depot,  was  paid  to  the  city 
comptroller.  In  the  autumn  of  1869  work  was  commenced 
on  pier  No.  1,  adjacent  to  the  river,  which  was  interrupted 
July  3,  187 1,  by  an  injunction  obtained  by  the  U.  S.  District 
Attorney,  but  resumed  immediately  after  the  dissolution  of  the 


•*x 


76 


injunction,  January  16,  1872.  In  1870  the  new  line  of  break- 
water was  constructed  between  Twelfth  street  and  Fourteenth 
street;  and  a  large  part  of  the  triangular  space  outside  the 
breakwater  of  1869,  north  of  the  south  line  of  Monroe  street, 
marked  on  the  Morehouse  map  "  Built  1873,"  was  filled  with 
earth,  prior  to  the  passage  of  the  repealing  Act.  Between  the 
date  of  the  passage  of  the  Act  of  1869  and  its  repeal  in  1873, 
more  than  $200,000  was  expended  by  the  company  upon  the 
submerged  lands  included  in  the  grant;  and  it  is  shown  that  the 
company  was  active  during  the  same  period  in  trying  to  ob- 
tain the  consent  of  the  War  Department  to  the  construction  of 
wharves  south  of  Randolph  street. 

These  acts  can  be  accounted  for  only  upon  the  supposition 
that  the  act  of  1869  had  been  accepted  by  the  company,  and, 
in  the  absence  of  any  countervailing  proof,  are  in  themselves 
conclusive  evidence  of  such  acceptance. 

XI.  The  repeal  of  the  Act  of  April  16, 1869,  did  not  divest 
the  title  which  had  become  vested  in  the  railroad  company. 
Private  rights  which  have  vested  under  a  legislative  Act  are 
not  affected  by  a  repeal  of  the  law,  and  cannot  be  annulled  by 
subsequent  legislation.  A  State  does  not  possess  the  power 
of  revoking  its  own  grants. 

It  has  been  for  more  than  eighty  years  the  settled  doctrine 
of  this  court,  that  a  grant  of  land  made  by  a  State  and  ac- 
cepted by  the  grantee  is  an  executed  contract,  within  the  pro- 
tection of  that  clause  of  the  constitution  of  the  United  States, 
which  declares  that  no  State  shall  pass  any  law  impairing  the 
obligation  of  contracts. 

Fletcher  v.  Peck,  6  Cranch,  87. 

It  appeared  in  the  case  cited,  that  a  tract  of  land  had  been 
conveyed  by  the  governor  of  Georgia  under  the  authority  of 


77 

an  Act  of  the  legislature,  which  was  subsequently  repealed. 
The  grantees  had  conveyed  the  property  to  purchasers  for  a 
valuable  consideration  before  the  repeal,  but  the  principle  on 
which  the  case  was  decided  was  independent  of  that  circum- 
stance. The  opinion  of  the  court  was  delivered  by  Chief 
Justice  Marshall.  "  The  principle  asserted  is,"  says  the  Chief 
Justice,  "  that  one  legislature  is  competent  to  repeal  any 
"  Act  which  a  former  legislature  was  competent  to  pass;  and 
"  that  one  legislature  cannot  abridge  the  powers  of  a  succeed- 
ing legislature.  The  correctness  of  this  principle,  so  far  as 
"  respects  general  legislation,  can  never  be  controverted.  But 
"  if an  act  be  done  under  a  law,  a  succeeding  legislature  can- 
"  not  undo  it.  The  past  cannot  be  recalled  by  the  most  ab- 
solute power.  Conveyances  have  been  made,  these  convey- 
"  ances  have  vested  legal  estates,  and  if  these  estates  may  be 
"  seized  by  the  sovereign  authority,  still,  that  they  originally 
"  vested  is  a  fact,  and  cannot  cease  to  be  a  fact.  When,  then,  a 
"  law  is  in  its  nature  a  contract,  when  absolute  rights  have  vested 
"  under  that  contract,  a  repeal  of  the  law  cannot  divest  those 
"  rights;  and  the  act  of  annulling  them,  if  legitimate,  is  ren- 
"  dered  so  by  a  power  applicable  to  the  case  of  every  individ- 
"  ual  in  the  community.  .  .  .  The  Constitution  of  the 
"  United  States  declares  that  no  State  shall  pass  any  bill  of  at- 
"  tainder,  ex  -post  facto  law,  or  law  impairing  the  obligation  of 
"  contracts.  Does  the  case  now  under  consideration  come 
"  within  this  prohibitory  section  of  the  Constitution?  In  con- 
"  sidering  this  very  interesting  question,  we  immediately  ask 
"  ourselves,  what  is  a  contract?  Is  a  grant  a  contract?  A  con- 
"  tract  is  a  compact  between  two  or  more  parties,  and  is  either 
"  executory  or  executed.  An  executory  contract  is  one  in 
"  which  a  party  binds  himself  to  do,  or  not  to  do,  a  particular 
"  thing;  such  was  the  law  under  which  the  conveyance  was 
"  made  by  the  Governor.  A  contract  executed  is  one  in 
"  which    the  object  of  contract  is  performed;  and    this,  says 


78 

"  Blackstone,  differs  in  nothing  from  a  grant.  The  contract 
"  between  Georgia  and  the  purchasers  was  executed  by  the 
"  grant.  A  contract  executed,  as  well  as  one  which  is  execu- 
"  tory,  contains  obligations  binding  on  the  parties.  A  grant, 
"  in  its  own  nature,  amounts  to  an  extinguishment  of  the  right 
"  of  the  grantor,  and  implies  a  contract  not  to  reassert  that 
"  right.  A  party  is,  therefore,  always  estopped  by  his  own 
"  grant.  Since,  then,  in  fact,  a  grant  is  a  contract  executed, 
"  the  obligation  of  which  still  continues,  and  since  the  Con- 
"  stitution  uses  the  general  term  contract,  without  distinguish- 
"  ing  between  those  which  are  executory  and  those  which  are 
"  executed,  it  must  be  construed  to  comprehend  the  latter  as 
"  well  as  the  former.  A  law  annulling  conveyances  between 
"  individuals,  and  declaring  that  the  grantors  should  stand 
"  seized  of  their  former  estates,  notwithstanding  those  grants, 
"  would  be  as  repugnant  to  the  Constitution  as  a  law  discharg- 
"  ing  the  vendors  of  property  from  the  obligation  of  executing 
"  their  contracts  by  conveyance.  It  would  be  strange  if  a  con- 
"  tract  to  convey  was  secured  by  the  Constitution,  whilst  an 
"  absolute  conveyance  remained  unprotected." 

The  question  whether  grants  made  by  the  State  are  ex- 
cluded from  the  operation  of  the  constitutional  provision  is  next 
considered;  and  it  was  held,  that  as  the  words  are  general  and 
contain  no  such  distinction,  the  prohibition  extends  to  contracts 
made  by  the  State  as  well  as  to  those  of  private  persons. 

That  decision  has  never  been  questioned  in  this  court. 
Fletcher  v  Peck  is  a  leading  case,  which  has  been  steadily  fol- 
lowed in  both  the  State  and  Federal  courts.  In  Von  Hoffman 
v.  City  of  j^jiincy,  4  Wall.,  550,  it  is  said  that  the  principles 
which  it  maintains  "are  now  axiomatic  in  American  jurispru- 
u  dence,  and  are  no  longer  open  to  controversy." 

Other  authorities  to  the  same  effect,  to  which  the  attention 
of  the  court  is  respectfully  called,  are: 

Terrett  v.  Taylor,  9  Cranch.,  43. 


79 

Davis  v.  Gray,  16  Wall.,  203. 

Hall  v.    Wisconsin,  103   U.  S.,  5. 

Franklin  County  Grammar  School  v.  Bailey,  62 

Vt,  467. 

See  also:     Cooley's  Const.  Lim.,  275. 

In  Terrett  v.  Taylor,  it  was  again  decided  by  this  court  that 
a  legislative  grant  or  confirmation  of  land  vests  an  irrevocable 
title.  "  We  have  no  knowledge,"  say  the  court,  speaking 
through  Mr.  Justice  Story,  "  of  any  authority  or  principle 
"  which  would  support  the  doctrine  that  a  legislative  grant  is 
"  revocable  in  its  own  nature,  and  held  only  durante  bene 
"  -placito.  Such  a  doctrine  ...  is  utterly  inconsistent 
"  with  a  great  and  fundamental  principle  of  a  republican  gov- 
"  ernment,  the  right  of  the  citizens  to  the  free  enjoyment  of 
"  their  property  legally  acquired.  ...  A  private  cor^ora- 
"  tion  created  by  the  legislature  may  lose  its  franchises  by  a 
"misuser  or  a  nonuser  of  them;  and  they  may  be  resumed  by 
"  the  government  under  a  judicial  judgment  upon  a  quo  warranto 
"  to  ascertain  and  enforce  the  forfeiture.  .  .  .  But  that 
"  the  legislature  can  repeal  statutes  creating  private  corpora- 
"  tions,  or  confirming  to  them  property  already  acquired  under 
"  the  faith  of  previous  laws,  and  by  such  repeal  can  vest  the 
"  property  of  such  corporations  exclusively  in  the  State,  or 
"  dispose  of  the  same  to  such  purposes  as  they  may  please, 
"  without  the  consent  or  default  of  the  corporators,  we  are  not 
"  prepared  to  admit;  and  we  think  ourselves  standing  upon 
"  the  principles  of  natural  justice,  upon  the  fundamental  laws 
"  of  every  free  government,  upon  the  spirit  and  letter  of  the 
"  Constitution  of  the  United  States,  and  upon  the  decisions  of 
"  most  respectable  judicial  tribunals,  in  resisting  sucli  a  doc- 
"  trine." 

In  Davis  v.  Gray,  it  was  held,  where  lands  had  been  granted 
by   the  State  to  a  railway  company,   that  a  subsequent   enact- 


8o 

ment  declaring  the  lands  forfeited,  the  company  being  in  no 
default,  was  a  mere  nullity.  That  the  Act  of  incorporation 
and  the  land  grant  were  contracts,  and  as  such  within  the  pro- 
tection of  that  clause  of  the  Constitution  of  the  United  States 
which  prohibits  a  State  from  passing  a  law  impairing  the  obli- 
gation of  contracts,  is,  it  is  said,  "  too  well  settled  in  this  court 
"  to  require  discussion."  This  is  made  more  emphatic  by  what 
follows:  "  When  a  State  becomes  a  party  to  a  contract,  as  in 
"  the  case  before  us,  the  same  rules  of  law  are  applicable  to 
"  her  as  to  private  persons  under  like  circumstances.  When 
"  she  or  her  representatives  are  properly  brought  into  the 
"  forum  of  litigation,  neither  she  nor  they  can  assert  any  right 
"  or  immunity  as  incident  to  her  political  sovereignty." 

In  Hall  v.  Wisconsin,  it  was  held,  that  a  contract  between  a 
State  and  a  private  person  for  the  performance  of  certain 
duties  for  a  specific  period  at  a  stipulated  compensation,  is 
within  the  protection  of  the  Constitution.  The  court  say: 
"  When  a  State  descends  from  the  plane  of  its  sovereignty  and 
"  contracts  with  private  persons,  it  is  regarded  -pro  hac  vice  as 
"  a  private  person  itself,  and  is  bound  accordingly." 

In  Franklin  County  Grammar  School  v.  Bailey,  it  was  held, 
where  lands  had  been  granted  by  an  Act  of  the  legislature  to 
a  county  Grammar  School,  which  had  been  some  years  before 
incorporated,  no  right  having  been  reserved  to  alter  or  repeal 
the  Act,  that  a  subsequent  statute  placing  the  lands  under  the 
charge  of  certain  town  officers  and  appropriating  the  rents  to 
the  support  of  another  school,  in  which  a  grammar  school  de- 
partment was  to  be  maintained,  was  void  as  impairing  the  obli- 
gation of  a  contract.  Even  if  the  grant  was  without  consid- 
eration, it  was  an  executed  gift  and  could  not  be  recalled.  But 
by  accepting  it,  the  grantee  took  upon  itself  the  duty  of  leas- 
ing and  caring  for  the  lands  and  collecting  and  applying  the 
rents  to  the  purposes  specified   in  the  grant,  and  this,  in    the 


445 

8i 

opinion  of  the  court,  was  ample  consideration,  if  a  considera* 
tion  was  required. 

To  these  authorities  might  be  added  the  multitude  of  cases 
in  which  it  is  held  that  a  grant  of  corporate  rights  and  fran- 
chises, accepted  by  the  grantee,  is  a  contract  which  cannot  be 
impaired  by  subsequent  legislation.  Corporations  acquire  all 
such  rights  by  virtue  of  grants  from  the  State.  When  ac- 
cepted, they  become  vested  rights  and  cannot  be  resumed  at 
the  pleasure  of  the  State.  They  may  be  forfeited  for  misuser 
or  nonuser,  but  only  by  trial  and  judgment  in  due  course  of 
law.  There  is  no  distinction  in  law  as  to  the  effect  of  such 
grants  and  a  grant  of  land  made  by  the  State  to  a  private  cor- 
poration. The  State  incurs  the  same  obligation  in  both  cases. 
There  can  be  no  ground  on  which  the  contract  in  the  one 
case  can  be  infringed,  which  will  not  equally  justify  the  same 
usurpation  of  power  with  regard  to  the  other. 

The  title  acquired  under  the  Act  of  1869  could  not  be  an- 
nulled by  the  repeal  of  the  Act,  for  the  additional  reason  that 
no  State  can  deprive  any  person  of  property  without  due  pro- 
cess of  law. 

It  was  said  by  Chief  Justice  Marshall  in  Fletcher  v. 
Peck,  "  that  it  may  be  well  doubted  whether  the  nature  of 
"  society  and  of  government  does  not  prescribe  some  limits  to 
"  the  legislative  power."  When  once  a  State  has  conveyed 
its  interest  in  a  tract  of  land,  which  it  owns,  to  an  individual, 
the  land  becomes  private  property.  The  State  has  parted  with 
the  control  over  it,  and  the  grantee  immediately  succeeds  to 
all  the  rights  of  ownership.  It  is  as  truly  his  property  as  if 
the  title  had  been  derived  from  another  source.  The  legisla- 
ture has  no  more  right  to  interfere  with  his  enjoyment  of  it, 
than  it  has  to  interfere  with  the  rights  of  other  land-owners. 
It  may  make  the   grant   on  such  conditions  as  it   pleases,    and 


1,1 


82 

can  enforce  their  performace;  but  it  can  no  more  rightfully 
recall  the  grant,  without  the  consent  or  default  of  the  grantee, 
than  it  can  seize  arbitrarily  upon  lands  which  it  never  owned. 

The  right  to  acquire  property,  and  to  be  secure  in  the  en- 
joyment of  it  when  lawfully  acquired,  has  been  placed  beyond 
legislative  encroachment  everywhere  in  the  United  States. 
In  some  form  of  words,  the  constitution  of  every  State  con- 
tains a  provision,  that  "  no  person  shall  be  deprived  of  life, 
"liberty  or  property,  without  due  process  of  law  ";  and  since 
the  adoption  of  the  Fourteenth  Amendment  in  1868,  the 
same  check  on  the  abuse  of  legislative  power  has  been  pro- 
vided by  the  Constitution  of  the  United  States. 

That  railroad  corporations  are  within  the  purview  of  this 
provision  is  settled  by  repeated  decisions  of  this  court. 

Santa   Clara   County  v.  Southern   Pac.   R.  R. 
Co.,  118  U.  S.  394. 

Minneapolis  Ry.  Co.  v.  BeckwitJi,  129  U.  S.  26. 

Railroad  Company  v.  Gibbes,  142  U.  S.  386. 

The  Act  of  April  16,  1869,  was  repealed  on  the  15th  of 
April,  1873-  During  the  intervening  period  of  four  years  the 
title  to  the  land  in  controversy  was  vested  in  the  railroad 
company.  The  company  still  holds  the  title*  unless  it  shall  be 
held  that  the  repealing  Act  was  "due  process  of  law." 

XII.  It  is  assumed  in  the  opinion  of  the  court  below,  that 
the  only  object  of  the  legislature  in  making  the  grant  of  the 
submerged  land  was  to  enable  the  railroad  company  to  con- 
struct an  outer  harbor,  and  to  build,  maintain,  and  lease 
wharves  and  docks  for  the  use  of  shipping;  that  the  railroad 
company,  being  interested  to  some  extent  in  the  accomplish- 
ment of  that  object  was  selected  as  an  agency  of  the  State  to 
undertake  the  work,  and  was  for  that  purpose  given  such  an 
enlargement  of  its  original  powers  as  would  enable  ifc  to  enter 


83 

upon  and  complete  it;  that  the  Act  imposed  on  the  company 
no  duty  or  obligation  that  was  enforcible  by  legal  proceedings; 
and  that  the  grant  was  in  legal  effect  a  mere  license,  for 
which  nothing  was  paid,  and  which  it  was  competent  for  the 
State  to  revoke,  if  upon  considerations  of  public  policy  it 
should  think  best  not  to  intrust  the  work  to  such  an  agency, 
provided  the  company  was  not  deprived  without  compensation 
of  the  use  of  improvements  made  distinctly  upon  the  faith  of 
the  grant.      (Rec,  215-218.) 

It  is  submitted,  with  great  deference,  that  in  this  view  of  the 
subject  there  is  a  clear  misapprehension  of  the  legal  effect  of 
the  Act  of  April  16,  1869. 

It  is  no  doubt  true,  that  the  legislature  expected  that  the 
railroad  company  would  improve  the  land  by  the  construction 
of  wharves,  upon  which  tracks  could  be  laid  to  enable  cars  and 
vessels  to  lie  side  by  side,  and  that  by  necessary  implication 
power  was  conferred  upon  the  company  to  make  such  improve- 
ments. The  land  was  covered  by  water,  and  in  that  state  was 
not  fit  for  the  uses  to  which  dry  land  can  be  applied.  The  Act 
certainly  contemplated  that  the  land  was  to  be  converted  to 
profitable  use  by  the  railroad  company,  that  improvements 
would  be  made  upon  it,  and  that  a  revenue  would  be  derived 
from  the  use  of  the  land  and  also  from  leases.  It  was  made 
an  express  condition  of  the  grant  that  seven  per  cent,  of  all 
such  revenue  should  be  paid  into  the  State  treasury.  The 
State  also  reserved  the  right  to  regulate  the  rates  of  wharfage 
and  dockage  to  be  charged  in  the  harbor. 

But  it  is  equally  clear,  that  the  use  to  be  made  of  the  land 
and  the  character  and  extent  of  the  improvements  to  be  put 
upon  it,  were  left  wholly  to  the  discretion  of  the  railroad  com- 
pany, subject  to  but  one  restriction:  that  nothing  contained  in 
the  Act  should  "  authorize  obstructions  to  the  Chicago  harbor, 
"  or  impair  the  public  right  of    navigation."     There  was  no 


84 

requirement  that  the  company  should  construct  a  harbor.  The 
only  obligations  imposed  upon  the  grantee  were,  that  it  "should 
"  hold  the  fee  of  said  lands  in  perpetuity,"  and  pay  into  the 
state  treasury  a  certain  proportion  of  the  gross  receipts  derived 
from  the  use  or  leases  of  the  property  aud  the  improvements 
which  might  be  made  upon  it.  The  company  was  left  free  to 
make  any  lawful  use  of  the  land  it  should  deem  expedient, 
subject  only  to  the  restriction  above  mentioned.  The  assump- 
tion, therefore,  that  the  only  object  of  the  legislature  in  passing 
the  law  was  to  make  provision  for  an  outer  harbor,  is  clearly 
inadmissible.  The  principal  inducement  manifestly  was  to 
obtain  an  augmentation  of  the  revenues,  already  exceedingly 
large,  derived  by  the  State  from  the  Illinois  Central  Railroad 
Company.  The  granted  land,  in  the  condition  in  which  it  then 
was,  was  of  no  use  to  anybody  and  had  no  appreciable  value. 
The  State  derived  no  income  from  it,  and  the  shallow  waters  of 
that  portion  of  the  lake  were  of  no  practical  use  for  purposes 
of  navigation.  But  the  land  was  so  situated  that  it  might  be 
made  useful  and  valuable  by  the  expenditure  of  sufficient 
money.  Portions  of  it  were  needed  for  actual  use  by  the 
railroad  company — its  terminal  grounds  in  Chicago  could  be 
extended  in  no  other  direction.  That  corporation  sustained 
peculiar  relations  to  the  State,  and  the  main  object  of  the  legis- 
lature in  ceding  to  it  this  waste  tract  of  submerged  land  pre- 
sumably was,  to  supply  necessary  facilities  for  handling  its 
traffic,  and  to  induce  the  company  to  improve  the  property 
and  make  it  a  source  of  permanent  income  to  the  public 
treasury. 

But  admit,  for  the  purpose  of  the  argument,  that  there 
was  another  object,  namely,  the  construction  of  an  outer  har- 
bor, and  let  us  suppose  this  object  to  have  been  definitely  ex- 
pressed in  the  Act:  It  could  avail  nothing  in  support  of  the 
repealing  statute.     In  no    viewr    of  the    case   can    it  be  main- 


S5 

tained  that  the  company  was  employed  merely  as  an  agency 
of  the  State  to  make  the  improvement.  It  had  a  beneficial 
interest  in  the  property;  the  improvements  made  upon  it 
would  belong  to  it  and  not  to  the  State.  It  had  the  exclusive 
power  to  manage  the  estate,  to  make  leases  at  its  own  dis- 
cretion, to  receive  trie  income,  and,  after  paying  the  stipulated 
per  centage  to  the  State,  to  appropriate  the  residue  to  its  own 
use. 

The  Illinois  Central  Railroad  Company,  although  it  has 
public  duties  to  perform,  is  not  a  public  corporation.  Prop- 
erty acquired  by  it  is  in  no  sense  public  property,  nor  is  a  con- 
tract between  it  and  the  State  less  obligatory  upon  both  par- 
ties than  one  made  by  the  State  with  a  private  citizen.  In 
accepting  the  grants  made  by  the  State  in  1869,  the  company 
assented  to  the  conditions  expressed  in  the  Act,  and  the  State 
has  the  right  to  insist  upon  performance  of  them;  but  it 
can  require  nothing  more.  Both  parties  are  bound  by  the 
terms  of  the  contract,  the  State  as  effectually  as  the  railroad 
company.  If  the  obligations  assumed  by  the  latter  should  not 
be  performed  in  good  faith,  the  law  affords  an  adequate 
remedy.  Even  if  there  were  sufficient  cause  of  forfeiture, 
the  grant  could  be  revoked  or  vacated  only  by  trial  and  judg- 
ment in  due  course  of  law. 

The  further  suggestion  that  the  Act  of  1869  was  in  legal 
effect  a  mere  license,  revocable  at  any  time  before  the  contem- 
plated improvements  were  completed,  at  the  pleasure  of  the 
State,  is  equally  inadmissible.  A  license  is  merely  an  authority 
to  do  something  upon  another's  land  granted  to  a  person  hold- 
ing no  estate  therein.  The  Act  of  1869  contains  no  language 
which  conveys  the  idea  of  a  mere  license,  nor  anything  to  indi- 
cate that  this  was  at  all  in  the  minds  of  those  who  framed  and 
passed  it.  There  is  no  obscurity  in  the  terms,  nor  any  room 
for  doubt   as  to  the  intention    of   the  legislature.     The  oper- 


86 

ative  words  are:  "  All  the  ricfht  and  title  of  the  State  of  Illi- 
"  nois  in  and  to  the  submerged  lands  "  described  "  are  hereby 
"  granted,  in  fee,  to  the  Illinois  Central  Railroad  Company,  its 
"  successor  and  assigns."  Next  follows  the  provision,  that 
"  the  fee  to  said  lands  shall  be  held  by  said  com  fan  y  in  -perfetn- 
ility."  To  construe  these  words  as  a  mere  license  to  enter 
and  construct  public  works  upon  land  belonging  to  the  State, 
is  obviously  impossible.  The  title  to  the  land  became  vested 
by  the  grant  in  the  railroad  company. 

The  question  whether  the  grant  was  founded  upon  a  valu- 
able consideration,  or  whether  it  was  a  pure  donation,  is  not 
material.  It  is  competent  for  an  owner  of  property,  who  is 
under*  no  legal  disability,  to  dispose  of  his  estate  as  he  pleases, 
if  no  fraud  be  committed  upon  his  creditors.  He  may  convey 
it  for  charitable  or  public  uses,  or  he  may  give  it  away  to  any 
one  he  chooses  without  consideration.  A  deed  property  drawn 
and  executed  by  the  grantor  as  a  voluntary  gift,  will  pass  the 
title  to  the  grantee  as  effectually  as  if  made  for  a  valuable 
consideration.  A  want  of  consideration,  in  the  absence  of 
fraud,  is  no  ground  of  avoiding  a  deed.  Executory  contracts 
require  a  valuable  consideration  to  sustain  them.  But  a  gift  of 
land  or  other  property  completely  executed  is  irrevocable. 
The  thing  conveyed  becomes  the  property  of  the  donee,  and 
no  subsequent  change  of  mind  on  the  part  of  the  donor  will 
enable  him  to  resume  the  title.  These  principles  are  not  less 
applicable  to  transactions  between  the  State  and  its  grantees 
than  to  those  between  individuals.  A  donation  made  by  law 
is  certainly  no  less  valid  than  a  gift  inter  -partes. 

-In  Farrington  v.  Tennessee,  95  U.  S.,  683,  it  is  said:  "Con- 
"  tracts  are  executed  or  executory.  A  contract  is  executed 
"  where  everything  that  was  to  be  done  is  done,  and  nothing 
"  remains  to  be  done.  A  grant  actually  made  is  within  this 
"  category.     Such  a  contract  requires  no  consideration  to  sup- 


87 

"  port  it.     A  gift  consummated  is  as  valid  in  law   as   anything 
"  else.     Dartmouth  College  v.   Woodward,  4  Wheat.,  518." 

But  the  grant  in  this  case  was  not  a  mere  gratuity.  There 
was  a  sufficient  consideration  to  sustain  even  an  executory  con- 
tract. The  State  was  to  receive  a  pecuniary  equivalent  for 
the  lands  granted.  The  undertaking  by  the  railroad  company 
to  hold  the  title  in  perpetuity,  and  to  pay  forever  into  the  State 
treasury  seven  per  cent,  annually  of  the  gross  receipts  derived 
from  use  or  leases  of  the  property  and  the  improvements  put 
upon  it,  was  a  valuable  consideration  in  the  strictest  legal 
sense.  If  any  consideration  was  required  to  support  the  grant, 
it  is  found  in  this  express  obligation  imposed  by  the  legislature 
and  accepted  by  the  grantee,  which  is  of  perpetual  duration. 
And  this  obligation  has  been  placed  by  a  provision  of  the 
constitution  of  the  State  of  Illinois,  enacted  since  the  Act  of 
1869  was  passed,  beyond  the  control  of  the  legislature.  (Ante 
p.  42). 

XIII:  In  the  cross-appeal  taken  by  the  State  it  is  assigned 
for  error,  that  the  court  below  sustained  the  validity  of  the 
Act  of  April  16,  1869. 

Two  objections  have  been  raised  to  the  validity  of  the  Act, 
which  it  is  necessary  to  consider. 

1.  It  is  objected  that  the  requisite  constitutional  forms  were 
not  observed  by  the  legislature  in  passing  the  Act. 

The  constitution  of  1848,  in  force  at  the  time,  provided  (Art. 
3,  Sec.  23)  that  "  every  bill  shall  be  read  on  three  different 
"  days,  in  each  house,  unless,  in  case  of  urgency,  three-fourths 
"  of  the  house  where  such  bill  is  so  depending  shall  deem  it 
"  expedient  to  dispense  with  this  rule."  It  also  provided  (Art. 
3,  Sec.  13),  that  "  each  house  shall  keep  a  journal  of  its  pro- 
"  ceedings,  and  publish  them." 

The  particular   objection  urged  is,  that  the  journal  of  the 


88 

Senate  does  not  show  that  the  bill  was  read  on  three  different 
days  in  that  body,  nor  that  the  rule  was  dispensed  with  by  a 
vote  of  three-fourths  of  its  members. 

The  constitution  does  not  expressly  require  that  the  three 
several  readings  shall  be  entered  on  the  journals;  but  it  is  ex- 
pressly provided  (Art.  3,  Sec.  21),  that  "on  the  final  passage 
"  of  all  bills  the  vote  shall  be  by  ayes  and  noes,  and  shall  be 
"entered  on  the  journal;  and  no  bill  shall  become  a  law  with- 
"  out  the  concurrence  of  a  majority  of  all  the  members  elect 
"  of  each  house." 

The  Act  in  question,  properly  authenticated  by  the  presiding 
officers  of  the  two  houses,  was  published  by  the  Secretary  of 
State  in  the  volume  of  public  laws  of  1869,  with  his  official 
certificate  appended,  as  required  by  law.  (Laws  1869,  245^ 
248,  411;  Gross  Stat.  1868,  415,  515-517). 

Whether  an  Act,  thus  attested  and  authenticated,  is  not  in 
itself  conclusive  evidence  that  all  necessary  constitutional  forms 
were  observed  in  the  course  of  its  passage;  or  whether  it  is 
competent  to  show  from  the  journal  of  either  house,  for  the 
purpose  of  invalidating  the  Act,  that  some  of  those  forms  wrere 
omitted,  are  questions  on  which  there  is  in  the  State  courts 
some  diversity  of  opinion. 

It  has  always  been  held  in  England  that  the  enrolled  Act  im- 
ports absolute  verity,  and,  therefore,  cannot  be  questioned;  and 
this  is  the  prevailing  rule  in  this  country. 

Field  \.  Clark,  143  U.  S.,  649. 

But  in  Illinois,  in  consequence  of  the  special  constitutional 
provisions  relating  to  legislative  proceedings,  a  different  rule 
has  been  adopted.  It  is  there  held,  when  the  validity  of  a 
statute  is  drawn  in  question,  that  it  is  competent  for  the  court 
to  examine  the  journals  to  ascertain  whether  it  was  legally- 
passed.     The  burden   of  proof,   however,   is   upon   the   party 


89 

assailing  the  law.  Prima  facie,  an  Act  properly  verified  is  a 
valid  law,  of  which  the  court  must  take  judicial  notice.  To 
overcome  that  presumption,  the  evidence,  it  is  held,  must  be 
clear  and  convincing.  It  is  by  no  means  sufficient  to  raise  a 
doubt.  It  must  be  clearly  proved  that  the  requirements  of  the 
constitution  were  not  observed.  If  the  journals  are  lost  or 
destroyed,  the  presumption  that  the  proceedings  were  regular 
will  sustain  the  law. 

Sfanghr  v.  Jacoby,  14  111.,  297. 

Larrison  v.  P.  A.  &  D.  P.  P.  Co.,  77  III,  12. 

People  v.  Loewenthal,  93  111.,  192. 

The  subject  has  been  considered  by  this  court,  and  it  was 
held  in  the  earliest  case  by  a  bare  majority  of  the  judges,  but 
not  without  strong  expressions  of  dissent  from  the  minority, 
that  the  rule  established  in  the  State  courts  of  Illinois  should 
be  followed  by  the  Federal  courts  in  Illinois  cases. 

Town  of  South   Ottawa  v.  Perkins,  94  U.  S., 
260. 

The  same  rule  has  been  recognized  in  two  subsequent  cases, 
in  which  it  was  also  held  that  the  court  will  take  judicial 
notice  of  the  journals,  and  that  copies  of  the  journals,  certified 
by  the  Secretary  of  State,  and  the  printed  journals,  published 
in  obedience  to  law,  are  both  competent  evidence  of  the  pro- 
ceedings of  the  legislature. 

.    Walnut  v.   Wade,  103  U.  S.,  683. 
Post  v.  Stifervisors,  105  U.  S.,  667. 

It  appears  in  this  case,  that  the  original  journals  of  the  two 
houses,  for  the  legislative  session  of  1869,  are  not  on  file  in  the 
office  of  the  Secretary  of  State,  and  have  not  been  preserved. 
What  are  there  known  as  the  House  and  Senate  journals  of  the 
twenty-sixth  General  Assembly,  consist  of  five  bound  volumes 
in  manuscript,  supposed  to  have  been  copied  from  the  original 


9° 

journals.  The  original  journals  themselves  were  deposited  in 
the  Secretary's  office  at  the  close  of  the  session,  and  were  after- 
wards sent  to  the  public  printer  and  never  returned.  (Rec, 
167-17 1.) 

On  the  26th  of  March,  1869,  a  law  was  enacted  (Laws  of 
1869,  p.  48),  which  provided  that  thereafter  the  copying  of 
the  journals  of  each  General  Assembly  should  be  done  under 
the  personal  supervision  of  the  Secretary  of  State,  and  that  in 
no  case  should  he  -permit  the  originals  to  be  taken  out  of  his  office. 
It  seems  that  this  law,  which  took  effect  from  its  passage,  was 
disregarded.  The  tradition  in  the  office  is,  that  after  the  jour- 
nals were  printed  they  were  disposed  of  as  waste  paper. 
(Rec,  169.) 

The  certified  copy  of  the  House  and  Senate  journals,  or  of 
so  much  of  the  same  as  relates  to  the  passage  of  the  Act  in 
question,  which  was  put  in  evidence  by  the  Attorney  General 
(Rec,  551-578),  was  made  from  the  five  bound  volumes  in 
manuscript  now  on  file  in  the  Secretary's  office.  This  was 
supplemented  by  a  further  transcript  of  a  portion  of  the  pro- 
ceedings, also  certified  by  the  Secretary  of  State  (Rec,  171, 
172);  and  it  was  stipulated  by  counsel  for  the  respective  par- 
ties that  upon  the  final  hearing  of  the  cause  in  the  Circuit 
Court,  or  upon  the  hearing  of  any  appeal  in  the  Supreme 
Court,  either  party  might  refer  to  the  printed  journals  with 
the  same  effect  as  if  they  had  been  formally  introduced  in  evi- 
dence and  incorporated  in  the  record.  (Rec,  517.)  A  tran- 
script from  the  printed  journal  was  also  offered  in  evidence 
and  made  a  part  of  the  record.    (Rec,  521.) 

So  far  as  relates  to  the  present  question,  there  is  no  impor- 
tant discrepancy  between  the  printed  journal  of  the  Senate 
and  the  transcript  produced  from  the  Secretary  of  State's 
office.  The  journals  show  that  the  bill  was  introduced  in  the 
House  of  Representatives  January    13,  1869.     It  was    known 


J 

as  "  House  Bill  No.  373-"     It  passed  the  House  February  20, 
1869,  and  on  ^e  same  day  was  sent  to  the  Senate. 

The  proceedings  of  the  Senate,  as  shown  by  the  journal,  are 
in  substance  as  follows:  The  bill  was  received  from  the 
House  February  20,  1869.      (Record,  574.) 

Monday,  February  22.  The  bill  was  taken  up  and  read  a 
first  time.  A  motion  was  made  that  the  bill  be  laid  on  the 
table  until  July  4th,  which  was  lost  by  a  vote  of  yeas  1 1,  nays 
14.  It  was  moved  that  the  bill  be  ordered  to  a  second  reading, 
which  motion  Was  carried  by  a  vote  of  yeas  15,  nays  10.  On 
motion,  the  bill  was  laid  on  the  table  for  the  purpose  of  print- 
ing, and  two  hundred  copies  ordered  printed. 

Wednesday,  February  24..  A  motion  was  made  that  the  bill 
betaken  from  the  table  and  referred  to  a  committee,  which  was 
carried  by  a  Vote  of  yeas  17,  nays  7.  On  motion,  the  bill  was 
referred  to  the  committee  on  the  judiciary. 

Monday,  March  1.  The  bill  was  reported  from  the  com- 
mittee on  the  judiciary,  with  a  recommendation  in  favor  of  its 
passage.  The  report  of  the  committee  was  concurred  in  and 
the  bill  ordered  to  a  third  reading.  A  motion  was  made  to  re- 
consider the  last  vote. 

Friday,  March  5.  The  bill  was  made  the  special  order  for 
Saturday,  March  6,  at  ten  o'clock  a.  m. 

Saturday,  March  6.  The  consideration  of  the  bill  was  post- 
poned, and  made  a  special  order  for  Monday,  March  8,  at  ten 
o'clock  a.  m. 

Monday,  March  8.  The  motion  to  reconsider  the  vote  or- 
dering the  bill  to  a  third  reading  was  laid  on  the  table,  yeas 
14,  nays  11.  The  bill  was  read  a  third  time;  and  the  ques- 
tion being  put  "  shall  this  bill  pass?"  it  was  decided  in  the 
affirmative,  years  14,  nays  II.  The  names  of  those  voting  on 
each  side  are  entered  on  the  journal.  Ordered  that  the  title  be 
as  aforesaid,  and  that  the  secretary  inform  the  House  of  Rep- 


456 

Q2 

resentatives  thereof.  A  motion  was  made  to  reconsider  the 
vote  by  which  the  bill  was  passed,  which  motion  was  laid  on 
the  table  by  a  vote  of  yeas  14,    nays  11. 

Wednesday,  March  10.  The  bill  was  reported  to  have  been 
correctly  enrolled,  and  to  have  been  laid  before  the  Governor 
on  the  9th  of  March  for  his  approval. 

Friday,  April  16.  The  bill  was  returned  from  the  House  of 
Representatives,  with  a  message  that  the  Governor  had  returned 
the  bill  to  that  house  with  his  objections,  and  that  after  recon- 
sidering the  bill  a  majority  of  the  members  elected  to  the  House 
had  agreed  to  pass  the  same  notwithstanding  the  objections 
of  the  Governor.  The  bill  was  taken  up,  and  the  question 
being  "  shall  this  bill  pass  notwithstanding  the  objections  of 
"  the  Governor?"  it  was  decided  in  the  affirmative,  yeas  14, 
nays  11.  The  names  of  those  voting  on  each  side  are  entered 
on  the  journal.  Ordered  that  the  title  be  as  aforesaid,  and 
that  the  secretary  inform  the  House  of  Representatives  there- 
of.     (Rec.  574-578). 

It  should  be  stated  in  explanation  of  this  final  action,  that 
the  constitution  of  1848,  then  in  force,  provided  (Art.  4,  Sec. 
21)  that  "every  bill  which  shall  have  passed  the  Senate  and 
"  House  of  Representatives  shall,  before  it  becomes  a  law,  be 
"  presented  to  the  Governor;  if  he  approve,  he  shall  sign  it; 
"  but  if  not,  he  shall  return  it,  with  his  objections,  to  the  house 
"  in  which  it  shall  have  originated;  and  the  said  house  shall 
"  enter  the  objections  at  large  on  their  journal,  and  proceed 
"  to  reconsider  it.  If,  after  such  reconsideration,  a  majority  of 
"  the  members  elected  shall  agree  to  pass  the  bill,  it  shall  be 
"  sent,  together  with  the  objections,  to  the  other  house,  by 
"  which  it  shall  likewise  be  reconsidered;  and  if  approved  by 
"  a  majority  of  the  members  elected,  it  shall  become  a  law, 
'•  notwithstanding  the  objections  of  the  Governor;  but  in  all 
"  such  cases  the  votes  of  both  houses  shall   be  determined  by 


93 

"  yeas  and   nays,  to  be   entered  on  the  journal  of  each  house, 
"  respectively." 

The  Senate  at  that  time  consisted  of  25  members,  and  the 
House  of  Representatives  of  85  members.  (Constitution  of 
1848,  Art.  3,  Sec.  6;   Laws  of    1861,  pp.  16-22. ) 

The  question  to  be  decided  is,  whether  it  clearly  appears  from 
the  journal  of  the  Senate  that  the  bill  was  not  read  a  second  time 
in  that  body,  and  that  the  rule  requiring  a  second  reading  was 
not  dispensed  with  by  the  requisite  vote? 

It  will  be  observed  that  the  bill  was  ordered  to  a  second  read- 
ing on  the  2 2d  of  February.  Nothing  appears  on  the  journal 
to  show  that  the  rule  was  not  dispensed  with  and  the  bill  read  a 
second  time  on  that  day.  The  journal  is  silent  as  to  whether 
any  action  was  taken  upon  the  bill  on  the  23d  of  February. 
On  the  24th,  the  bill  was  referred  to  a  committee.  It  would  at 
that  time  have  been  in  order  to  read  the  bill  a  second  time,  with- 
out a  suspension  of  the  rule,  if  it  had  not  been  done  already;  and 
it  does  not  appear  from  the  journal  that  this  action  was  not 
taken.  The  rules  of  the  Senate  then  in  force  have  been  put  in 
evidence,  one  of  which  provided  that  "  no  bill  shall  be  com- 
mitted or  amended  until  it  shall  have  been  twice  read."  (Rec, 
517.)  The  presumption,  therefore,  is,  in  the  absence  of  evi- 
dence to  the  contrary,  that  the  bill  was  read  a  second  time  be- 
fore  it  was  referred  to  the  committee.  On  the  8th  of  March  the 
bill,  as  the  journal  affirmatively  shows,  was  read  a  third  time. 
This  imports  that  it  had  been  previously  read  twice ;  and  the  im- 
plication cannot  be  overcome  by  the  failure  of  the  clerk  to  re- 
cord a  fact  which  was  not  required  to  be  entered  on  the 
journal. 

The  precise  question  here  raised  was  passed  upon  by  the 
Supreme  Court  of  Illinois  in  i860.  The  judgment  of  the  court 
was  delivered  by  Chief  Justice  Caton,  who  thus  disposes  of  the 
objection:     "It  is   objected  that   the  Senate  journal  does  not 


y 

94 

"  show  that  the  bill  was  read  three  times  in  that  body  before 
"  it  was  put  upon  its  final  passage,  and  that  hence  the  consti- 
"  tutional  requirements  to  make  it  a  law  were  not  observed. 
"  The  constitution  does  require  that  every  bill  shall  be  read 
"  three  times  in  each  branch  of  the  General  Assembly  before 
"it  shall  be  passed  into  a  law,  but  the  constitution  does  not  say 
"  that  these  several  readings  shall  be  entered  on  the  journals. 
"  Some  acts  performed  in  the  passage  of  laws  are  required  by 
"  the  constitution  to  be  entered  on  the  journals  in  order  to 
"  make  them  valid,  and  among  these  are  the  entries  of  the  ayes 
"  and  nays  on  the  final  passage  of  every  bill,  and  we  held  in 
"  the  case  of  Sf  angler  v.  yacoby,  14  111.,  297,  that  wmere  the  jour- 
"  naldid  not  show  this,  the  act  never  became  a  law.  But  where 
"  the  constitution  is  silent  whether  a  particular  act  which  is 
"  required  to  be  performed  shall  be  entered  on  the  journals,  it 
"  is  then  left  to  the  discretion  of  either  house  to  enter  it  or  not, 
"and  the  silence  of  the  journal  on  the  subject  ought  not  to  be 
"  be  held  to  afford  evidence  that  the  act  was  not  done.  In 
"  such  a  case  we  must  presume  it  was  done,  unless  the  journal 
"  affirmatively  shows  that  it  was  not  done.  We  think  this  act 
"  was  properly  passed  by  both  houses  of  the  General  Assem- 
"  bly,  and  when  approved  by  the  Governor  it  became  a  law." 
Supervisors  of  Schuyler  County  v.  The  People, 
25  111.,  181. 

This  decision  is  referred  to  with  approval  in  a  subsequent 
case  in  the  same  court  decided  in  1865.  The  following  is  an 
extract  from  the  opinion  of  the  court,  delivered  by  Chief  Jus- 
tice Walker:  "  If,  upon  an  inspection  of  a  bill,  it  is  found  to 
"  be  duly  authenticated,  and  the  journals  show  that  v  it  passed 
"  both  houses  by  the  number  of  votes  required  by  the  consti- 
"  tution,  and  the  ayes  and  noes  are  entered  upon  the  journal, 
"  courts  will,  if  a  public  law,  regard  and  act  upon  it  as  such. 
"     .  Some  acts  must  appear  by  the  journals   to  have 


95  -! : 

"  been  performed,  as  well  as   the    proper  authentication    upon 

"  the  bill,  before  it   can  be    regarded   as    a  law    of  the    land. 

"  Everything  which  the  constitution  has  required  to  be  entered 

"  upon  the  journals,  in  the  progreas  of  a  bill  through  the  two 

"  houses,  is  essential  to  its  binding  force,  and  must  appear  from 

"  the  journals  to  have  been  performed.     Other   acts  required 

"  to    be    done   by   the    two    houses,    but    not    required  to  be 

"  spread  upon  the  journals,  will   be*   presumed    to    have  been 

"  done,  when  a  statute  appears  in  other  respects  to  be  regular, 

"  unless  the  contrary  appears    from    the  journals    themselves. 

"  Supervisors  v.  The  People,  25  111.,  181.     Such  was   the  rule 

"  adopted  in  that  case,  and  we    see    no   reason    for    departing 

"  from  it.  "       ** 

Wabash  R.  R.  Co.  v.  Hughes,  38  111.,  186. 

The  other  Illinois  cases,  in  which  the  court  has  referred  to 
the  journals  to  ascertain  whether  bills  were  constitutionally 
passed  by  the  legislature,  are  cited  below.  In  neither  of  these 
cases  has  the  decision  in  Supervisors  of  Schuyler  County  v. 
The  People  been  disapproved. 

Spangler  v.  facoby,  14  111.,  297. 

Turley  v.  County  of  Logan,  17  111.,  151. 

Prescott  v.  Trustees  of  Illinois  and  Michigan 
Canal,  19  111.,  324. 

The  People  v.  St arne,  35  111.,  121. 

The  People  v.  De  Wolf,  62  111.,  253. 

Ryan  v.  Lynch,  68  111.,  160. 

Miller  v.  Goodwin,  70  111.,  659. 

Larrison  v.  Peoria,  Atlanta  &  Decatur  R.  R. 
Co.,  77  111.,  12. 

The  People  v.  Loezventhal,  g^  111.,  192. 

Wcnner  v.    Thornton,  98  111.,  156. 

Burritt  v.  Commissioners,  120  111.,  322. 


96 

Numerous  decisions  in  other  States  are  in  accord  with  the 
leading  Illinois  case  above  referred  to. 

Miller  v.  The  State,  3  Ohio  St.,  475. 
McCulloch  v.  The  State,  11  Ind.,  424. 
The  State  v.  City  of  Hastings,  24  Minn.,  78. 
English  v.  Oliver,  28  Ark.,  317. 
Chicot  County  v.  Da  vies,  40  Ark.,  200. 
The  State  v.  Francis,  26  Kan.,  724. 
In  re  Vanderburg,  28  Kan.,  243. 
The  State  v.  Mead,  71  Mo.,  268. 
Attorney  General  v.  /?«#,  64  Mich.,  385. 
See  also:     Cooley  Const.  Lim.,  135,  139. 

Objection  was  also  made  in  the  court  below  to  the  action 
taken  on  the  bill  in  the  House  of  Representatives. 

It  appears  from  the  journal  that  the  bill  was  introduced  in 
the  House  January  13,  1869.  It  was  then  read  a  first  time 
and  ordered  to  a  second  reading.  The  rule  having  been  dis- 
pensed with,  the  bill  was  read  a  second  time  on  the  same  day, 
and  referred  to  a  committee.  On  the  4th  of  February  the 
committee  "  reported  the  same  back  with  amendments,  and 
"  recommended  its  passage."  (Rec,  552.)  On  the  10th  of 
February  these  amendments  were  concurred  in,  and  further 
amendments  were  offered  and  adopted.  The  bill  as  amended 
was  then  ordered  to  be  engrossed  for  a  third  reading.  (Rec, 
553-559.)  On  the  1 8th  of  February  the  bill  wras  reported  to 
have  been  correctly  engrossed,  (Rec,  559),  and  on  the  20th 
of  February  it  was  read  a  third  time  and  passed.  The  vote 
on  its  passage  was  taken  by  yeas  and  nays  and  entered  on  the 
journal.  (Rec,  560.)  The  point  urged  was,  that  important 
changes  were  made  in  the  bill  by  the  amendments  reported 
from  the  committee;  and  that  the  bill  as  passed  was  not 
read  three  times  in  the  House. 

The  journal  does   not  show  what  the    amendments  were, 


97 

which  were  reported  by  the  committee;  nor  is  there  any  evi- 
dence in  the  record  which  supplies  the  omission.  Indeed,  no 
extraneous  evidence  would  be  admissible.  It  is  held  in  Illinois, 
that  to  invalidate  a  law  on  th*e  ground  that  the  requirements  of 
the  Constitution  had  not  been  complied  with  in  its  passage, 
the  fact  must  be  shown  by  the  journals.  In  no  other  mode  can 
the  court  be  properly  advised. 

Hafftel  v.  Brethaaer,  70  111.,  166. 

Illinois  Central  R.  R.  Co.  v.    Wren,  43  111.,  77. 

The  fact  that  the  amendments  in  question  were  acted  upon 
without  objection  and  adopted  by  the  House,  is  conclusive  ev- 
idence of  the  regularity  of  the  proceedings.  Whether  they 
were  many  or  few,  radical  or  slight,  is  wholly  immaterial. 
The  requirement  that  bills  shall  be  read  three  times  does  not 
apply  to  amendments. 

The  People  v.   Wallace,  70  III.,  680. 

Attention  should  perhaps  be  called  to  the  fact,  that  in  the 
copy  of  the  House  journal  produced  from  the  Secretary  of 
State's  office,  a  palpable  clerical  error  has  been  detected  in 
the  record  of  proceedings  on  the  fifth  of  April.  (Rec,  573.) 

The  bill,  having  passed  both  branches  of  the  General  As- 
sembly, was  returned  by  the  Governor,  with  his  objections,  to 
the  House  of  Representatives  where  it  originated,  on  the  14th 
of  April.  The  objections  were  entered  at  large  upon  the 
journal  (Rec,  561,  573,)  and  on  the  next  day  (April  15)  the 
House  proceeded  to  reconsider  the  bill.  The  subsequent  pro- 
ceedings on  that  day,  as  shown  by  the  amended  transcript  of 
the  journal  obtained  from  the  Secretary  of  State's  office,  are 
as  follows: 

"  A  bill  (H.  B.  No.  373)  for  <  An  Act  in  relation  to  a  por 
"  tion  of  the  submerged  lands  and  lake-park  grounds,  lying  on 
"  and  adjacent  to  the  shore  of  Lake  Michigan,  on  the   eastern 


98 

**  frontage  of  the  city  of  Chicago,'  was  taken  up,  and  the 
"  House  proceeded  to  a  reconsideration  thereof.  Pending 
"  which,  the  speaker  announced  that  the  hour  of  adjournment 
"  as  fixed  by  resolution,  had  arrived,  and  declared  the  House 
"  adjourned  until  7  o'clock  p.  m. 

"  7  o'clock  p.  m. 
"The  consideration  of  S.  B.  No.  373,  was  resumed.  On 
"  motion  of  Mr.  Dinsmoor,  a  call  of  the  house  was  ordered, 
"  and  the  following  members  answered  to  their  names:  (here 
''follow  the  names — present,  73.)  A  quorum  being  present, 
"  all  further  proceedings  under  the  call  were  dispensed  with. 
"  And  the  question  being  '  Shall  this  bill  pass,  the  objections 
"  of  the  Governor  to  the  contrary  notwithstanding?'  It  was 
"decided  in  the  affirmative — yeas  52,  nays  31.  Those  voting 
"  in  the  affirmative  are:  (here  follow  the  names.)  Those 
"  voting  in  the  negative  are:  (here  follow  the  names.)  Or- 
"  dered  that  the  clerk  inform  the  Senate  thereof."  (Rec,  171? 
"  172.) 

It  will  be  observed  that  the  House  was  engaged  in  the  con- 
sideration of  the  bill  when  the  hour  of  adjournment  arrived. 
When  the  House  convened  again  at  7  o'clock,  the  consideration 
of  the  same  subject  was  resumed,  but,  by  a  clerical  error,  the 
entry  on  the  journal  is:  "The  consideration  of  S.  B.  No. 
373"  (instead  of  H.  B.  No.  373),  "was  resumed."  The 
question  (after  a  call  of  the  House)  was  then  put  upon  the  pas- 
sage of  the  bill,  which  was  decided  in  the  affirmative  on  a  call 
of  the  yeas  and  nays. 

It  may  be  urged,  that  in  consequence  of  this  clerical  mis- 
take, there  is  no  evidence  in  the  journal  that  House  Bill  No. 
373?  which  is  the  bill  in  question  in  this  case,  was  passed  in 
the  House  over  the  Governor's  veto.  There  is,  however,  no 
such  imperfection  in  the  printed  journal.  The  printed  jour- 
nal of  the  proceedings  of  the  House  on  the  15th  of  April  will 
be  found  on  page  521  of  the  printed  record.     The  first  entry 


'  ^6  ; 

99 

in  that  journal,  after  the  resumption  of  business  at  7  o'clock,  is 
this:  "  The  consideration  of  House  Bill  No.  373  was  resumed"; 
and  there  can  be  no  doubt  whatever  of  the  accuracy  of  this 
record.  It  appears  from  the  printed  journals  of  that  session 
that  Senate  Bill  No.  373  was  a  "  Bill  for  an  Act  to  enable  the 
"  County  of  Clark  to  fund  certain  indebtedness."  The  proceed- 
ings of  the  two  houses  in  relation  to  that  bill  will  be  found  on 
pages  518-520  of  the  printed  record.  The  bill  was  intro- 
duced in  the  Senate  January  22,  1869,  and  passed  on  the  8th 
of  February.  It  was  sent  to  the  House  February  9th,  and 
there  read  a  third  time  and  passed  on  the  8th  of  March.  It 
was  presented  to  the  Governor,  for  his  approval,  on  the  19th 
of  March,  and  on  the  14th  of  April  a  message  was  received 
from  him  that  he  had  approved  the  bill.  The  act  is  published 
in  volume  2,  Private  Laws  of  1869,  page  308,  and  it  appears 
there  to  have  been  approved    March   29,  1869.      (Rec,  516.) 

It  is  manifest  from  these  facts,  that  the  record  in  the  copy  of 
the  House  journal  on  file  in  the  Secretary  of  State's  office,  is 
erroneous.  Such  a  clerical  error,  if  found  in  the  original 
journal,  could  mislead  or  deceive  no  one,  and  would  not,  there- 
fore, be  magnified  into  importance  by  the  courts. 

Walnut  v.   Wade,  103  U.  S.,  683,  691. 
Larrison  v.  Peoria,  Atlanta  and  Decatur  R.  R. 
Co.,  77  111.,  12. 

These  objections  have  been  noticed  at  greater  length  than 
would  have  been  deemed  admissible,  in  view  of  the  very  full 
and  judicious  treatment  of  the  subject  in  the  opinion  of  the 
Circuit  Court,  (Rec,  203-206),  had  it  not  been  thought  that  a 
succinct  statement  of  the  facts  on  which  they  are  based,  and 
which  are  found  scattered  in  various  places  throughout  a  very 
voluminous  record,  would  be  of  assistance  to  the  court. 


ioo 

2.  It  is  further  objected  that  the  Act  of  April  16,  1869,  is 
repugnant  to  the  clause  of  the  constitution  of  1848,  which  pro- 
vides (Art.  3,  Sec.  23),  that  "  no  private  or  local  law  which 
"  may  be  passed  by  the  general  assembly,  shall  embrace  more 
"  than  one  subject,  and  that  shall  be  expressed  in  the  title." 

The  question  here  raised  is  very  fully  considered  in  the 
opinion  of  the  court  below,  (Rec,  206—212),  and  it  is  scarcely 
important  to  fortify  reasoning  so  abundantly  strong.  But 
there  is  one  point  on  which  perhaps  something  more  may  be 
appropriately  said. 

The  first  inquiry  suggested  is,  whether  the  Act  of  1869  is  a 
private  or  local  law  within  the  meaning  of  the  above  regu- 
lation ? 

That  it  is  not  private,  must  be  conceded.  The  last  section 
reads  as  follows:  "Sec.  8.  This  Act  shall  be  a  public  Act, 
"and  in  force  from  and  after  its  passage."  (Rec,  637.) 
And  generally  all  enactments  which  directly  affect  public 
interests  are  held  to  be  public.  A  statute  which  concerns  the 
public  revenue  is  a  public  statute. 

Unity  v  Barrage,  103  U.  S.,  447?  454~5- 

Binkert  v.  Jansen,  94  111.,  291. 

The  People  v.    Wright,  70  111.,  398. 

Sedgwick  on  Stat,  and  Const.  Law,  25-6. 

Potter's  Dwarris  on  Statutes,  53. 

1  Black.  Com.,  86. 

It  is  also  a  general  Act,  and  not  "  local,"  in  the  legal  sense 
of  that  term.  A  statute  is  general,  if  it  directly  affects  the 
interests  of  the  State  at  large,  or  relates  to  the  property  of  the 
State  or  the  public  revenue.  Local  laws  are  such  as  are  con- 
fined in  their  operation  and  effect  to  a  particular  section  of  the 

State. 

Ferguson  v.  Boss,  126  N.  Y.,  459. 


IOI 

The  Act  of  1869  relates  to  or  concerns  the  interests  of  the 
public  at  large.  It  grants  a  portion  of  the  public  domain  to 
the  Illinois  Central  Railroad  Company,  a  corporation  in  which 
all  the  people  of  the  State  are  directly  interested,  and  it  pro- 
vides for  a  revenue  to  be  collected  and  applied  for  State  pur- 
poses. It  authorizes  that  company  to  make  improvements 
upon  the  granted  lands,  from  which  the  State  will  derive  a 
direct  benefit,  and  which,  so  far  as  they  furnish  additional  facili- 
ties for  transportation  by  water  or  rail,  will  be  of  service,  not 
solely  or  mainly  to  residents  in  Chicago,  but  to  the  general 
public. 

A  law  providing  for   a  public  improvement  at  a  particular 

place  cannot  be  regarded  as  local  in  its  character,  if  it  be  one 

of  general  public  utility.   Thus,  as  intimated  by  the  New  York 

Court  of  Appeals,  an  appropriation  made  for  the  improvement 

of  navigation  on  the  Hudson  river,  would  not  be  regarded  as 

an  appropriation  for  a  local  purpose,  although  the  money  was 

to  be  expended  in  deepening  the  channel  in  a  particular  part  of 

its  course,  since  the  benefit  arising    from    the    improvement 

would  not  be  confined  to  the  people  living  in  the  locality,  but 

would    be    shared   by   the    entire    commerce     of    that    great 

river. 

The  People  v.  Allen,  42  N.  Y.,  383. 

For  the  same  reason,  the  appropriations  made  by  the 
General  Government  for  the  removal  of  obstructions  to  navi- 
gation at  Hell  Gate  in  the  East  river,  for  the  construction  of 
jetties  at  the  mouth  of  the  Mississippi,  and  for  an  outer  harbor 
at  Chicago,  can  with  no  propriety  be  regarded  as  appropri- 
ations for  mere  local  purposes.  A  vast  commerce,  not  con- 
fined even  to  any  one  State,  shares  in  the  benefit  derived  from 
each  of  these  works.  The  public  at  large  are  interested  in 
such  improvements,  not  merely  incidentally,  or  in  some  indefi- 
nite and  remote  sense,  but  directly  and   materially,  as  the   re- 


102 

cipients  of  the  main  benefits    and    advantages  arising  there- 
from. 

Reference  is  made  in  the  opinion  to  a  provision  in  the  con- 
stitution of  1870,  (Art.  4,  Sec.  22)  which  prohibits  the  Gen- 
eral Assembly  from  passing  "  local  or  special  laws  "  in  certain 
enumerated  cases,  and  this  was  thought  to  throw  light  upon 
the  meaning  of  the  word  "  local,"  as  used  in  the  constitution 
of  1848.  The  word,  it  is  said,  evidently  has  the  same  mean- 
ing in  both  instruments.  But  it  will  be  found  on  examination 
of  the  clause  referred  to  in  the  constitution  of  1870,  that  a  law 
making  a  grant  of  lands  belonging  to  the  State  is  not  one  of 
those  enumerated.  There  is  no  provision  in  that  instrument 
which  prohibits  the  legislature  from  passing  a  special  Act  for 
that  purpose;  nor  any  expression  which  indicates  that  such  an 
Act  is  to  be  regarded  as  local. 

The  Act  incorporating  the  Illinois  Central  Railroad  Com- 
pany is  clearly  neither  a  private  nor  a  local  law.  It  is  a  special 
law;  but  prior  to  1870  such  laws  were  not  prohibited.  The 
corporation  is  not  local  to  Chicago;  its  railroad  extends 
through  thirty  or  more  counties.  That  section  of  the  Act  of 
1869  by  which  the  grant  in  question  was  made  to  this  corpora- 
tion, is  no  more  local  than  the  law  which  conferred  upon  it  its 
corporate  rights  and  franchises.  Had  the  Act  contained  no 
other  provisions,  it  would  have  been  valid  under  any  title,  or 
without  a  title.  There  is  no  provision  in  the  constitution  of 
1848  requiring  the  subject  of  such  a  law  to  be  expressed  in  the 
title.  The  constitutional  restriction  does  not  extend  to  provis- 
ions which  are  neither  private  nor  local;  and  therefore  such 
provisions  are  valid  although  contained  in  a  law  with  others 
having  a  local  application,  whether  embraced  within  the  title 
or  not.  As  to  such  provisions  the  law  is  neither  private  nor 
local,  but  general  and  public.  This  was  decided  many  years 
since  by  a  court  composed  of  eminent  judges,  and  the  decision 


46; 

103 

has  been  uniformly   adhered   to  in   subsequent  cases  involving 
the  same  question. 

The  People  v.  McCann,  16  N.  Y.,  58. 

Williams  v.  The  People,  24  N.  Y.,  405. 

The  People  v.  Supervisors,  43  N.  Y.,  10. 

Pic  hards  v.  Pic  hards,  76  N.  Y.,   186. 

Pergusonv.  Poss,  126  N.  Y.,  459. 

If,  however,  it  be  admitted  that  the  Act  of  1869  is  local,  the 
objection  urged  against  it  is  untenable.  The  constitution  re- 
quired that  only  one  subject  should  be  embraced  in  a  private 
or  local  law,  and  that  it  should  be  expressed  in  the  title.  The 
object  of  the  restriction  was  to  prevent  surprise  or  fraud 
upon  the  legislature  by  covertly  inserting  provisions  in  bills  of 
which  the  titles  give  no  intimation,  and  to  apprise  the  public, 
through  such  publication  as  is  usually  made  of  legislative  pro- 
ceedings, of  the1  subjects  under  consideration,  so  that  those  who 
desire  it  may  have  an  opportunity  of  being  heard  thereon  by 
petition  or  otherwise.  "  There  was  no  design  to  embarrass  leg- 
"  islation  by  making  laws  unnecessarily  restrictive  in  their 
"  scope  and  operation,  and  thus  multiplying  their  number." 

Cooley's     Const.     Lim.,    143,  and    cases    there 
cited. 

A  similar  restriction  is  found  in  many  State  constitutions,  and 
attempts  have  been  frequently  made  both  in  the  Federal  and 
State  courts  to  invalidate  statutes  for  alleged  infringement  of 
it.  In  these  cases  crrtain  principles  have  been  established, 
which  furnish  in  general  very  clear  guidance  in  passing  upon 
such  objections, — among  them  the  following: 

a.  "  This  provision  of  the  constitution  must  receive  a  fair 
"  and  reasonable  construction;  one  which  will  repress  the  evil 
"  designed  to  be  guarded  against,  but  which,  at  the  same  time, 
"  will  not  render  it  oppressive  or  impracticable." 

Belleville  Railroad  Co.  v.    Gregory,   15   111.,    29. 


io4 

Carter  County  v.  Sinton,  120  U.  S.,  522. 
Cooley's  Const.  Lim.,   146. 

b.  "  The  legislature  must  determine  for  itself  how  broad 
"  and  comprehensive  shall  be  the  object  of  a  statute,  and  how 
"  much  particularity  shall  be  employed  in  defining  it."  "  The 
"  generality  of  the  subject  expressed  in  the  title  is  no  objection 
"  to  it,  since  it  is  purely  a  matter  of  legislative  discretion 
"  whether  the  subject  expressed  in  the  title  shall  be  general  or 
"  specific." 

The  People  v.-JVeZson,  133  111.,  565. 
G'Leary  v.  County  of  Cook,  28  111.,  534,   538. 
Cooley's  Const.  Lim.,  144. 

c.  If  the  title  adopted  is  sufficient  to  apprise  the  legislators 
of  the  general  subject  of  the  enactment,  every  provision  therein 
fairly  related  to  that  general  subject,  or  which  forms  a  sub- 
ordinate branch  or  part  of  it,  is  valid.  The  fact  that  many 
things  of  a  diverse  nature  are  authorized  or  required  to  be 
done,  is  unimportant,  provided  they  are  not  foreign  to  the 
general  subject  expressed  in  the  title.  "  Any  expression  in 
"  the  title  which  calls  attention  to  the  subject  of  the  bill,  al- 
"  though  in  general  terms,  is  sufficient." 

Town  of  Abington  v.  Cabeen,  106  111.,  200,  207. 
The  People  v.  Blue  Mountain  Joe,  129  111.,  371, 

377- 
Blake  v.  The  People,  109  111.,  504. 
Johnson  v.  The  People,  83  111.,  432. 
The  People  v.  Hazehvood,  116  111.,  320. 
Louisiana  v.  Pilsbury,  105  U.  S.,  278,  289. 
Montclair  v.  Ramsdell,  107  U.  S,,  147. 
Jonesboro  City  v.  Cairo  and  St.  L.  R.    R.  Co., 

no  U.  S.,  192. 
Mahomet  v.  Qiiackenbush,  117  U.  S.,  508. 


d.  "The  conflict  between  the  constitution  and  a  statute 
*'  must  be  palpable,  to  justify  the  judiciary  in  disregarding  it  upon 
u  the  sole  ground  that  it  embraces  more  than  one  subject,  or 
"  that,  if  there  be  but  one,  it  is  not  sufficiently  expressed  in  the 
"  title." 

Montclair  v.  Ramsdell,  107  U.  S.,  147. 
The  People  v.  Nelson,  133  111.,  575-6. 
Cooley's  Const.  Lim.,  183-186. 

e.  It  is  not  necessary  that  all  the  legal  effects  of  an  Act 
should  be  stated  in  the  title.  Where  the  Act  itself  is  clearly 
embraced  in  the  title,  all  legal  consequences  necessarily 
flowing  from  it,  will  be  regarded  as  embraced  within  the  title 
also. 

Mix  v.  Illinois  Cent.  R.  R.  Co.,  116  111.,  502, 
Timm  v.  Harrison,  109  111.,  594. 
Pliimmer  v.  The  People,  74  111.,  361. 
The  People  v.   Wright,  70  111.,  389. 

f.  If  there  are  parts  of  a  private  or  local  law  not  embraced 
In  the  title,  these  will  be  rejected;  but  this  will  not  defeat  the 
entire  Act,  if  the  other  provisions  are  separable  and  can  be  en- 
forced independently. 

The  People  v.  Nelson,  133  111.,  566. 

Donnersberger  v.  Prendergast,  128  111.,  230. 

Binz  v.  Weber,  81  111.,  288. 

Presser  v.  Illinois,  116  U.  S.,  252,  263. 

Unity  v.  Barrage,  103  U.  S.,  458-9. 

Pennimaii's  Case,  103  U.  S.,  7 1 6-1 7. 

Packet  Co.  v.  Keokuk,  95  U.  S.,  80. 

The  Act  of  April  16,  1869,  is  entitled:  "An  Act  in  rela- 
"  tion  to  a  portion  of  the  submerged  lands  and  Lake  Park 
"  gronnds  lying  on  and  adjacent  to  the  shore  of  Lake  Michi- 
"  gari,  on  the  eastern  frontage  of  the  city  of  Chicago."  No 
more  appropriate  words  could  have   been  selected  to  indicate 


1 06 


the  subject  of  legislation.  No  one  could  be  misled  by  the 
title,  or  doubt  what  the  subject-matter  was  to  which  the  bill 
related. 

By  subject  is  meant  that  which  is  brought  under  thought  or 
examination ;  that  which  is  taken  up  for  consideration  or  action ; 
that  which  is  treated  or  handled  in  writing  or  discourse.  This 
law  had  but  one  subject — the  disposal  of  the  lands  referred  to 
in  the  title.  It  is  impossible  to  say  that  this  was  more  than 
one  subject;  but  it  was  general  and  comprehensive  enough  to 
embrace  everything  contained  in  the  body  of  the  Act.  To 
this  there  is  no  constitutional  objection.  How  broad  the  scope 
of  a  local  statute  shall  be,  provided  it  relates  to  but  one  subject,  is 
a  matter  left  to  legislative  discretion.  A  bill  to  incorporate  a 
city,  or  a  college,  or  a  railroad  company,  often  contains  a  great 
diversity  of  provisions  on  minor  subjects.  Each  usually  em- 
braces many  details,  but  if  they  all  relate  to  one  general  sub- 
ject it  cannot  be  said  that  the  bill  is  repugnant  to  either  the 
letter  or  spirit  of  the  constitutional  provision  in  question. 

A  brief  reference  to  a  few  Illinois  decisions  may  be  of  ser- 
vice by  way  of  illustration. 

A  law  passed  in  1867,  entitled  "An  Act  to  authorize  the 
town  of  Ottawa  to  erect  two  bridges  across  the  Illinois  and 
Michigan  Canal,"  named  certain  persons  as  commissioners  to 
erect  two  bridges  across  the  canal  in  the  city  of  Ottawa,  and 
contained  a  provision  that  the  bridges  when  constructed  should 
be  maintained  and  kept  in  repair  by  the  city,  and  another  pro- 
vision that  the  cost  of  building  the  bridges  should  be  defrayed 
by  a  tax  to  be  levied  on  the  iozvn.  It  was  held  that  the  Act 
embraced  but  one  subject,  and  that  the  subject  was  expressed 
in  the  title.  ';  The  adjuncts  to  that  subject,"  it  is  said,  "  are  not 
"  required  to  be  expressed  or  the  modus  operandi" 

City  of  Ottawa  v.  The  People,  48  111.,  233. 


- 


io7 

A  law  passed  in  1867,  entitled  "An  act  to  prevent  domestic 
u  animals  from  running  at  large  in  the  counties  of  Monroe,  St. 
"  Clair  and  other  counties,"  contained  provisions  prohibiting 
domestic  animals  from  running  at  large  in  the  counties  named 
in  the  title  and  several  other  counties  mentioned  in  the  body  of 
the  Act.  Provision  was  made  for  submitting  the  law  to  the 
voters  in  each  county,  and  to  the  voters  in  any  precinct 
of  either  county,  and  if  a  majority  of  the  voters  in  either 
of  the  counties  or  precincts  should  so  decide,  it  was  to  be  in 
force  in  such  county  or  precinct.  It  was  urged  that  as  the  title 
of  the  Act  referred  only  to  counties,  and  not  to  precincts,  the 
subject  was  not  expressed  in  the  title;  and  further  that,  inasmuch 
as  several  counties  were  embraced  in  the  law,  some  of  which 
were  not  mentioned  in  the  title,  the  Act  contained  more  than 
one  subject.  The  court  held  that  the  objection  was  not  even 
plausible.  The  subject  of  the  Act  was  the  prevention  of  domestic 
animals  running  at  large  in  certain  localities.  The  territory  of  the 
several  counties  was  embraced  in  the  subject  of  the  bill,  as  was 
each  precinct  within  that  territory,  and  it  was  decided  that  the 
law  which  had  been  adopted  in  one  of  those  precincts  was 
there  valid  and  binding,  although  rejected  by  the  voters  of  the 
county. 

Erlinger  v.  Boneau,  51  111.,  94. 

By  a  law  passed  in  1867,  entitled  "  An  Act  to  authorize 
"  the  city  of  Belleville,  and  the  town  of  Mascoutah  to  issue 
"  bonds,"  authority  was  given  to  the  city  of  Belleville  to  issue 
bonds  to  pay  for  subscriptions  authorized  to  be  made  to  the 
capital  stock  of  any  railroad,  macadam  or  plank  road  leading 
to  or  from  that  city ;  and  by  a  separate  section  it  was  provided 
that  the  Act  should  "  also  apply  to,  and  be  in  force  for  the  use 
"  and  benefit  of  the  town  of  Mascoutah."  By  another  section  the 
town  of  Nashville,  in  another  county,  was  also  authorized  to 
avail  itself  of  the  benefit  of  the  Act.    ( 1  Priv.  Laws  1867,  page 


io8 


841.)  Bonds  having  been  issued  by  the  town  of  Mascoutah  pur- 
suant to  this  authority,  a  proceeding  was  instituted  to  contest 
the  validity  of  the  Act.  It  was  urged  that  the  bill  contained 
more  than  one  subject,  but  the  objection  was  overruled. 
"  According  to  numerous  decisions  of  this  court,"  says  Mr.  Jus- 
tice Walker,  who  wrote  the  opinion,  "  so  far  as  the  Act  rela- 
"  ting  to  the  city  of  Belleville  and  the  town  of  Mascoutah  is  con- 
"  cerned, there  was  but  one  subject-matter.  The  issue  of  the  bonds 
"  by  those  municipalities  to  pay  for  stock  authorized  to  be 
"  subscribed  to  any  railroad,  macadam  or  plank  road,  was  the 
"  controlling  purpose  of  the  law,  and  the  various  provisions  of 
"  the  Act  only  prescribed  the  mode  of  carrying  this  purpose 
"  into  effect.  Even  if  the  law  is  void  as  to  Nashville,  we  are 
"  at  a  loss  to  comprehend  in  what  manner  that  could  affect  the 
"  Act  so  far  as  it  relates  to  Belleville  and  Mascoutah.  The 
"  doctrine  is  well  established,  that  although  some  provisions  of 
"  an  Act  are  repugnant  to  the  constitution,  the  others  are 
"  valid  if  they  are  capable  of  being  carried  into  operation;  and 
"  there  can  be  no  doubt  that  all  relating  to  Nashville  may  be 
44  stricken  out,  and  still  enough  remain  to  permit  Belleville  and 
"  Mascoutah  to  issue  and  deliver  valid  and  binding  bonds. 
"  These  are  the  views  entertained  when  the  case  of  Decker  v. 
"  Hughes,  68  111.,  33,  was  before  us  on  a  petition  for  a  rehear- 
"  ing,  but,  as  they  seemed  to  be  so  obvious,  they  were  not  ex- 
"  pressed  in  an  opinion." 

Binz  v.    Weber,  81   111.,  288. 

In  1853,  a  law  was  passed  entitled  ''  An  Act  to  amend  an 
"  Act,  incorporating  the  Ottawa  Hydraulic  Co.  and  the  La 
"  Salle  County  Manufacturing  Co.,  both  incorporated  under  the 
"  general  law,  approved  February  10,  1849,"  by  wrhich  the 
corporate  existence  of  both  corporations  was  recognized  and 
their  powers  enlarged.  The  Act  was  assailed  on  the  ground 
that  it  was  in  conflict  with  that  provision  of  the  constitution  of 
1848,  now  under  consideration;  but  the  objection  was  not  sus- 


1 09 

tained.  The  court  say,  "  Both  corporations  were  located 
"  and  doing  business  in  Ottawa  in  1853,  when  the  Act 
"  was  passed.  Both  were  incorporated  under  the  general  cor- 
"  poration  law  of  1849,  and  were  alike  interested  in  the  water 
"  privileges  afforded  by  the  canal  at  that  place.  ...  It 
"  can  hardly  be  that  this  objection  is  founded  upon  the  fact  that 
"  the  legislature  has,  by  a  single  Act,  conferred  certain  pow- 
"  ers  and  privileges  upon  two  distinct  corporate  bodies.  It 
"would  be  just  as  reasonable  to  say  that  the  legislature,  by 
"  reason  of  the  constitutional  provision  in  question,  could  not 
"  make  a  joint  grant  to  two  separate  persons,  and  no  one,  we 
"  presume,  would  contend  for  that  for  a  moment.  The  pro- 
"  vision  of  the  constitution  in  question  has  often  been  before 
"  this  court,  and  wre  have  no  hesitancy  in  saying  there  is  no 
"  good  ground  for  the  claim  that  the  Act  of  1853  is  unconsti- 
"  tional  on  the  grounds  suggested." 

The  People  v.    Ottawa  Hydraulic  Co.,   115   111., 
281. 

Attention  is  also  invited  to: 

/;/  re  Mayer,  50  N.  Y.,  504. 

People  v.    Wilsea,  76  N.  Y.,  507. 

Hobokcn  v.  Penn.  Railroad  Co.,  124  U.  S.,  657.. 

Carter  County  v.  Sinton,  120  U.  S.,  517. 

Mahomet  v.  Qiiackenbush,  117  U.  S.,  508. 

Otoe  County  v.  Baldzvin,  111  U.  S.,  1,  16. 

The  validity  of  the  Act  of  1869  was  further  questioned  in 
the  court  below,  on  the  ground  that  it  did  not  pass  the  two 
houses  under  the  same  title. 

The  bill,  when  introduced  in  the  House  of  Representatives, 
bore  the  following  title:  "An  Act  to  enable  the  city  of  Chi- 
"  cago  to  enlarge  its  harbor,  and  to  grant  and  cede  all  the 
"  rights,  title  and  interest  of  the  State  in  and  to   certain  lands 


&  i  no 

**  lying  on  and  adjacent  to  the  shore  of  Lake  Michigan  on  the 
"  eastern  frontage  of  said  city."  (Rec,  552.)  The  bill  was 
amended  in  the  House,  but  retained  its  original  title  until  it 
had  passed  that  body.  Then,  by  order  of  the  House,  the  title 
was  changed  to  that  which  it  has  since  borne.  (Rec,  560.) 
The  bill  was  sent  to  the  Senate  bearing  the  amended  title, 
which  it  afterwards  retained.      (Rec,  574,  576.) 

It  has  been  decided  by  this  court  in  an  Illinois  case,  that 
"  there  is  no  rule  of  parliamentary  law,  and  there  is  no  pro- 
vision of  the  constitution  of  Illinois,  which  requires  a  bill  to 
preserve  the  same  title  through  all  its  stages  in  both 
Houses." 

Walnut  v.   Wade,  103  U.  S.,  683,  692. 

Although  the  title  is  made  by  the  constitution  of  Illinois  an 
essential  part  of  the  bill  at  the  time  of  its  passage,  it  is  not 
material  that  the  bill  passed  the  two  Houses  under  different 
titles,  so  long  as  either  was  sufficient  to  answer  the  constitu- 
tional requirement. 

Plummer  v.  The  People,  74  111.,  361. 
Johnson  v.  The  People,  83  111.,  432. 

The  title  of  the  Act  in  question,  at  the  time  of  its  passage 
in  the  House  fully  answered  that  requirement.  The  subject 
was  clearly  expressed  by  the  words,  "  An  Act  ...  to 
"  grant  and  cede  all  the  rights,  title  and  interest  of  the  State 
"  in  and  to  certain  lands  lying  on  and  adjacent  to  the  shore  of 
"  Lake  Michigan,  on  the  eastern  frontage  of  the  city  of  Chi- 
"  cago."  The  other  words,  "  to  enable  the  city  of  Chicago  to 
"  enlarge  its  harbor,  and,"  were,  no  doubt,  superfluous;  but 
they  do  not  vitiate  the  Act,  since  the  subject-matter  is  suffi- 
ciently indicated  by  the  rest  of  the  title. 

Prescott  v.  City  of  Chicago,  60  111.,  121. 

Binz  v.   Weber,  81  111.,  288. 

Blake  v.  The  People,  109  111.,  504. 


V       -J 


III 


It  is  a  further  sufficient  answer  to  this  objection,  that  the  bill 
passed  the  House  a  second  time,  after  its  veto  by  the  Governor, 
with  the  same  title  it  bore  when  it  passed  the  Senate.      (Rec, 

573-) 

XIV.  The  title  asserted  by  the  railroad  company  under  the 
Act  of  April  1 6,  1869,  is  attacked  on  several  other  grounds 
which  require  some  notice. 

1.  It  has  been  strenuously  insisted  that  the  State  has  no 
title  in  the  bed  of  the  Lake  which  can  be  transferred  by  grant 
to  private  ownership. 

This  contention  is  in  irreconcilable  conflict"  with  the  claim 
made  by  the  State  in  the  amended  information.  It  is  there  al- 
leged, that  the  rights  asserted  by  the  railroad  company  "  are  a 
"  great  and  irreparable  injury  to  the  State  of  Illinois  as  a  pro- 
"  prietor  and  owner  of  the  bed  of  the  lake,  throwing  doubts 
"  and  clouds  upon  its  title  thereto,  and  preventing  an  advan- 
"  tageous  sale  or  other  disposition  thereof''  (Rec,  142) ;  and  a 
part  of  the  relief  prayed  for  is,  **  that  the  State  of  Illinois  may 
"  be  declared  to  have  the  sole  and  exclusive  right  to  develop 
"  the  harbor  of  Chicago  by  the  construction  of  docks,  wharves, 
"etc.,  and  to  dispose  of  such  rights  at  its  pleasure,''''      (Rec, 

143.) 

This  subject  has  been  adverted  to  in  a  preceding  part  of 
this  brief  (Point  II.),  where  a  number  of  pertinent  and  well- 
considered  cases  have  been  cited.  What  has  been  there  said 
need  not  be  repeated.  It  is  sufficient  here  to  remark  that  noth- 
ing is  better  settled  in  the  law  of  this  country,  than  that  each 
State  has  the  right  to  dispose  of  its  property  in  the  soil  under 
navigable  waters  in  any  manner  it  may  deem  proper. 

Weber  v.   Harbor  Commissioners,  18  Wall.,    57. 
Hoboken  v.  Penn.  Railroad  Co.,  124  U.  S.,  657. 


*  i^/f 


112 

It  is  equally  well  settled,  that  the  legislature  of  each  State 
has  complete  control,  in  the  absence  of  constitutional  restric- 
tions, over  all  the  property  of  the  State,  and  is  invested  with 
general  authority  to  make  laws  at  its  discretion.  To  ascertain 
whether  a  particular  Act  is  within  the  power  of  the  legisla- 
ture, we  do  not  ask  if  special  authority  to  pass  it  has  been 
delegated,  but  we  look  to  see  whether  the  general  authority 
vested  in  that  department  has  been  so  limited  by  the  organic 
law  as  to  make  the  Act  invalid. 

The  court  will  search  in  vain  for  any  provision  in  the  con- 
stitution of  Illinois  prohibiting  the  General  Assembly  from 
granting  the  title  of  the  State  to  the  soil  under  navigable 
waters.     There  is  no  such  inhibition. 

2.  It  has  been  further  insisted  that  the  grant  of  the  sub- 
merged lands  was  a  nullity,  by  reason  of  the  incapacity  of  the 
railroad  company  to  take  and  hold  them. 

By  its  original  charter  the  company  was,  in  express  terms, 
invested  with  the  power  of  "  contracting  and  being  contracted 
"  with,"  and  of  "  acquiring  by  purchase  or  otherwise,  and  of 
"  holding  and  conveying  real  and  personal  estate,  which  may 
"  be  needful  to  carry  into  effect  fully  the  purposes  and  objects 
"  of  this  Act."  (Rec,  612.)  It  was  certainly  competent  for 
the  company  to  take  and  hold,  under  this  first  grant  of  author- 
itv,  any  part  of  the  lands  in  controversy  which  might  be  re- 
quired for  the  management  and  development  of  its  business. 
A  railroad  company  has  implied  authority  to  build  elevators 
and  warehouses  for  the  storage  of  property  transported  or  to 
be  transported  on  its  road,  and  if  it  has  a  terminus  on  naviga- 
ble waters,  it  has  the  right  to  construct  wharves  and  slips  to 
facilitate  the  transfer  of  freight  from  vessels  to  cars  and  vice 
versa.  Land  required  for  these  purposes  may  be  lawfully 
purchased  by  the  corporation. 

1  Morawetz  on  Priv.  Corp.,  Sects.  368,  370. 
Pierce  on  Railroads,  506. 


4  i 


113 


That  there  was  actual  necessity  for  the  immediate  use  of 
some  of  the  land  granted  to  the  company  by  the  Act  of  1869, 
is  conclusively  established  by  the  evidence,  and  must  be  con- 
ceded. If  it  had  purchased,  the  whole  tract  from  a  -private  owner \ 
his  deed  would  have  passed  the  title.  No  one  but  the  State 
could  object  that  the  company  was  holding  property  in  excess 
of  its  legitimate  necessities.  The  State  alone  could  assert  its 
policy  in  that  regard. 

National  Bank  v.  Matthews,  98  U.  S.,  621,  628. 

Alexander  v.  Tolleston  Club,  no  111.,  65. 

Hough  v.  Cook   County  Land  Co.,  73  111-,  23. 

1  Beach  on  Priv.  Corp.,  Sec.  378. 

And  if  the  State  by  appropriate  legislation  had  given  its 
consent  to  the  purchase,  or  afterwards  confirmed  it,  the  title 
would  be  secure  against  attack  e/en  from  that  quarter. 

Bat  the  grant  in  this  case  came  from  the  State.  It  ema- 
nated from  the  sovereign  authority,  which  could  create  cor- 
porations or  enlarge  their  powers.  Coming  from  such  a 
source,  the  grant  itself  conferred  the  capacity  to  take  and 
hold  the  lands.  "  A  legislative  grant  operates  as  a  law  as  well 
"  as  a  transfer  of  property,  and  has  such  force  as  the  legis- 
lature intended." 

■ScJudenberg  v.  Harriman,  21  Wall.,  62. 

By  necessary  implication  the  Act  of  1869  gave  whatever 
power  was  necessary  for  the  enjovment  of  the  property 
granted.  It  is  presumed  in  the  case  of  public  grants,  as  well 
as  in  those  between  private  parties,  that  the  grantor  intends  to 
convey,  and  the  grantee  expects  to  receive,  not  only  the  land 
specifically  described,  but  all  other  things,  so  far  as  it  is  in  the 
power  of  the  grantor  to  pass  them,  which  are  necessary  for 
the  enjoyment  of  the  land  granted. 

Chicago,   R.   I    &   P.   R)\    Co.  v.   Smith,  in 
111.,  363. 


ii4 


Hafs  v.  Hezvitt,  97  111.,  498. 

McAuley  v.    Columbus,    C.  &  I.  C.  Ry.  Co.,  83 

in.,  348. 

Langdon  v.  The  Mayor,  93  N.  Y.,  144. 

Bow  v.  Allenstown,  34  N.  H.,  351,  372. 
2  Dillon's  Munic.  Corp.,  Sec.  560. 

It  is  on  this  principle  that  a  grant  of  land  by  a  State  to  an 
alien  and  his  heirs,  is  held  necessarily  to  imply  that  he  shall  have 
capacity  to  transmit  by  inheritance  to  his  alien  offspring,  and 
that  they  shall  have  equally  a  capacity  to  take,  although  by 
the  general  laws  of  the  State  aliens  may  be  incapable  of  taking 
by  purchase  or  inheritance. 

Goodallw.  Jackson,  2oJohrson,  707. 

Commonwealth  v.  Heirs  of  Andre,  3  Pick,,  224. 


3.  It  is  charged  in  the  information  that  the  Act  of  1869, 
if  otherwise  legal,  was  inoperative  by  reason  of  the  peculiar- 
ity in  the  terms  of  the  grant,  the  legislature  by  said  pretended 
Act  purporting  to  grant  the  fee  to  said  railroad  company,  and 
by  the  said  pretended  Act  expressly  withholding  from  said 
railroad  company  the  power  to  grant,  sell  or  convey  the 
same."  (Rec,  139.) 

This  objection  is  captious.  The  granting  words  are:  "All 
the  right,  title  and  interest  of  the  State  of  Illinois  in  and  to 
the  submerged  lands  constituting  the  bed  of  Lake  Michigan, 
and  lying,"  etc.,  "are  hereby  granted,  in  fee  to  the  said  Illinois 
Central  Railroad  Company,  its  successors  and  assigns:  Pro- 
vided, however,  that  the  fee  to  said  lands  shall  be  held  by 
said  company  in  perpetuity,  and  that  the  said  company  shall 
not  have  power  to  grant,  sell  or  convey  the  fee  to  the  same, 
and  that  all  gross  receipts  from  use,  profits,  leases  or  other- 
wise of  said  lands  or  the  improvements  thereon,  or  that  may 
hereafter  be  made  thereon,  shall  form    a   part   of   the  gross 


■t: 


us 


"  proceeds,  receipts  and  income  of  the  said  Illinois  Central 
"  Railroad  Company,  upon  which  said  company  shall  forever 
"  pay  into  the  State  treasury,  semi-annually,  the  per  centum 
"  provided  for  in  its  charter,  in  accordance  with  the  require- 
"  ments  of  said  charter."  No  language  could  more  clearly 
express  the  intention  of  the  legislature.  The  intention  plainly 
was  to  ingraft  a  trust  upon  the  fee,  for  the  benefit  of  the  State 
in  perpetuity.  The  trust  having  been  created  by  the  law- 
making power,  no  legal  objection  can  be  made  to  it. 

4.  It  has  also  been  insisted  that  the  Act  of  1869  was  inef- 
fectual to  pass  the  title  to  the  submerged  lands,  because  a  grant 
of  land  belonging  to  the  State  could  not  be  made  by  a  mere 
Act  of  the  legislature. 

The  constitution  of  1848  provided  (Art.  4,  Sec.  25)  that 
"  all  grants  and  commissions  shall  be  sealed  with  the  great  seal 
of  State,  signed  by  the  Governor  or  person  administering  the 
government,  and  countersigned  by  the  Secretary  of  State." 
It  is  contended  that,  by  reason  of  this  provision,  a  formal  deed 
or  patent  signed  by  the  Governor  and  attested  by  the  great 
seal  was  necessary  in  all  cases  to  the  validity  of  a  grant  of  land 
by  the  State. 

This  position  is  not  tenable.  The  constitutional  provision 
in  question  was  not  intended  as  a  limitation  upon  the  power  of 
the  legislature.  It  is  found  in  the  fourth  article  of  the  consti- 
tution, which  relates  to  the  executive  department,  and  its  only 
object  was  to  prescribe  the  mode  in  which  grants  and  com- 
missions, which  that  department  had  authority  to  issue,  should 
be  authenticated. 

The  principle  is  thoroughly  settled  by  numerous  decisions  of 
this  court,  as  well  as  of  the  Supreme   Court   of  Illinois,  that  a 
perfect  grant  of  land  may  be  made  by  law,  without  the  issuing 
of  a  patent  or  any  other  documentary  evidence  of  title. 
$  trot  her  v.  Lucas,  12  Pet.,  454. 


'  4- 

n6 

GrignorP-s  Lessee  v.  Astor,  2  How.,  319* 
Ryan  v.  Carter,  93  U.  S.,  78. 
Morrow  v.    Whitney,  95  U.  S.,  551. 
Whitney  v.  Morrozv,  112  U.  S.,  693. 
Ballance  v.   Tesson,  12  111.,  326. 
/ifa//  v.  J'arvis,  65  111.,  303. 
Keller  v.  Brickey,  78  III.,  133. 
County  of  Piatt  v.  dumley,  81  111.,  350. 

These  authorities  show  conclusively  that  an  Act  of  the  legis- 
lature making  a  direct  grant  of  land  is  higher  evidence  of 
title  than  a  patent,  because  it  is  the  direct  grant  of  the  land 
by  the  government  itself,  whereas  a  patent  is  only  the  act  of 
its  ministerial  officers. 

By  an  Act  of  the  legislature  of  Illinois  approved  June  2  2? 
1852  (Laws  1852,  p.  178),  all  the  swamp  and  overflowed 
lands  which  had  been  granted  to  the  State  by  the  Act  of 
Congress  approved  September  28,  1850,  were  granted  to  the 
counties  in  which  they  were  situated.  Authority  was  con- 
ferred upon  the  county  court  of  each  county  to  advertise  and  sell 
the  lands  at  public  sale,  and  to  execute  deeds  to  the  pur- 
chasers. No  provision  was  made  for  the  issuing  of  any  pat- 
ent by  the  State.  None  of  these  lands — probably  exceeding 
in  the  aggregate  two  million  acres — all  or  nearly  all  of  which 
are  now  in  the  hands  of  private  purchasers,  are  held  under 
any  patent.  In  Keller  v.  Brickey,  above  cited,  it  was  held  that 
the  State  had  by  competent  authority  passed  the  title  to  these 
lands  to  the  counties,  and  that  a  deed  executed  by  the  county 
clerk  vested  in  the  purchaser  the  absolute  title  iiifee  simple  to 
the  land  described  in  it.  In  Cojinty  of  Piatt  v.  Gumley,  supra, 
it  was  held  that  the  county  could  maintain  an  action  of  eject- 
ment to  recover  a  tract  of  land,  which  had  been  certified  to 
the  county  as  swamp  land  by  the  State  auditor  pursuant  to  the 
provisions  of  the  Statute. 


4  i  • 

IT7 

But  the  point  here  raised  has  been  passed  upon  by  this 
court  in  a  case  almost  precisely  analogous.  In  the  year  1782, 
the  legislature  of  North  Carolina  passed  an  Act  granting  25,- 
000  acres  of  land  to  Major  General  Nathaniel  Greene,  his  heirs 
and  assigns.  The  constitution  of  North  Carolina  at  that  time 
contained  this  provision :  "  That  there  shall  be  a  seal  of 
"  this  State,  which  shall  be  kept  by  the  Governor,  and  used  by 
"him  as  occasion  may  require;  and  shall  be  called  the  great 
*'  seal  of  the  State  of  North  Carolina,  and  be  affixed  to  all 
"  grants  and  commissions."  In  a  suit  involving  the  title  to 
some  of  those  lands,  it  was  objected  that  the  legislative  Act 
could  not  have  effect  as  a  grant,  since  it  wanted  the  formality 
required  by  the  constitution.  The  objection  was  not  sustained. 
In  the  opinion  of  the  court,  delivered  by  Chief  Justice  Mar- 
shall, it  is  said :  "This  provision  of  the  constitution  is  so 
"  obviously  intended  for  the  completion  and  authentication  of 
"  an  instrument,  attesting  a  title  previously  created  by  law, 
"which  instrument  is  so  obviously  the  mere  evidence  of  prior 
"  legal  appropriation,  and  not  the  act  of  original  appropriation 
"  itself,  that  the  court  would  certainly  have  thought  it  unnec- 
"  essary  to  advert  to  it,  had  not  the  argument  been  urged  re- 
"  peatedl};,  and  with  much  earnestness,  by  counsel  of  the  high- 
"  est  respectability." 

Rutherford  v.  Greene's  Heirs,  2  Wheat.,  196. 

This  ruling  is  referred  to  with  approval  by  Chief  Justice 
Taney,  in  delivering  the  opinion  of  the  court  in 

Fremont  v.   United  States,  17  How.,  559. 

But,  if  it  were  conceded  that  these  decisions  are  erroneous, 
and  that  the  formality  of  a  deed  or  patent  was  necessary  to  the 
complete  transfer  of  the  legal  title,  it  would  not  follow  that 
the  Act  of  1869  was  inoperative.  If  not  effectual  as  a  grant, 
it  would  still  be  binding  on  the  State  as  a  contract.  At  most, 
it  could   only  be  said   that   the   legal  title  had   not  passed.     It 


n8 

could  not  be  denied  that  the  equitable  title  had  vested  in  the 
company.  In  that  aspect  of  the  case,  the  State  is  in  the  atti- 
tude of  a  party  asking  the  aid  of  a  court  of  equity  in  doing 
what  is  contrary  to  the  first  principles  of  equity. 

5.  There  is  another  point  put  prominently  forward  in  the 
information,  to  the  effect  that  the  land  in  Fractional  Section 
Fifteen  Addition  to  Chicago,  lying  east  of  Michigan  avenue 
and  between  Park  Row  and  the  center  line  of  Madison  street 
extended,  was  granted  by  the  State  to  the  Canal  Trustees  in 
1845,  and  that  the  title  remained  in  them  until  they  reconveyed 
the  property  to  the  State  in  187 1.  It  is  contended  that  during 
the  intermediate  period  the  State  had  no  title  which  it  could 
convey  to  the  railroad  company;  and  further,  that  this  is  a 
part  of  the  land  granted  to  the  State  by  Congress  in  1827  to 
aid  in  the  construction  of  the  canal,  and  that  it  could  be  sold 
by  the  State  only  for  the  purpose  of  procuring  funds  to  com- 
plete or  maintain  that  work. 

On  this  ground  it  is  claimed  that  the  railroad  company  ac- 
quired no  right  under  its  charter,  or  the  city  ordinance  of 
1852,  or  the  Act  of  April  16,  1869,  to  enter  upon  any  part  of 
that  land  and  appropriate  it  to  railroad  or  other  uses. 

All  the  material  facts  on  which  this  contention  is  based  are 
set  forth  on  pages  10  to  15  of  the  opening  statement. 

It  is  true  that  fractional  section  fifteen  was  one  of  the  tracts 
of  public  land  granted  to  the  State  by  Congress  in  1827  to  aid 
in  opening  the  canal.  But  express  provision  was  made  in  the 
Act,  that  the  State,  under  the  authority  of  its  legislature, 
should  "  have  power  to  sell  and  convey  the  whole  or  any  part 
of  the  said  land,  and  to  give  a  title  in  fee  simple  therefor"  to 
the  purchasers.  There  was  also  a  further  provision  that,  if 
the  canal  should  not  be  commenced  and  completed  within  the 
time  specified,  "  the  State  shall  be  bound  to  pay  to.  the  United, 


4:8 

States  the  amount  of  any  lands  previously  sold,  and  that  the 
title  to  purchasers  under  the  Stale  shall  be  valid."  (Rec.,  580.) 
It  is  clear  that  no  trust  was  attached  to  the  lands;  nor  was 
the  discretion  of  the  legislature  in  disposing  of  them  in  any 
way  controlled  by  the  Act.  Certainly  the  State  could  not 
rescind  its  grant  on  the  ground  that  it  had  failed  to  perform 
its  duty. 

Emigrant  Company  v.  County  of  Adams,  100  U. 
S.,  61. 

Mills  County  v.  Railroad  Companies,  107  U.  S., 

557- 
Hagar  v.  Reclamation  District,  111  U.  S.,  701. 

But  there  has  been  no  default  on  the  part  of  the  State.  The 
canal  was  completed  in  18^8  (Rec,  507),  and  continuously 
since  then  has  been  open  to  the  use  of  the  public. 

In  1836  the  canal  commissioners,  pursuant  to  the  provisions 
of  an  Act  of  the  legislature  approved  January  9,  1836,  laid  off 
fractional  section  fifteen  into  town  lots,  and  caused  a  map  of  the 
division  to  be  made  and  recorded.  (See  ante,  p.  11.)  It  is 
alleged  in  the  information  that  only  a  part  of  the  tract  was  sub- 
divided--that  the  subdivision  "  did  not  extend  east  of  Michi- 
"  gan  avenue,  as  the  same  is  now  occupied  and  used,  except  a 
"  narrow  strip  on  the  south  end  thereof."  (Rec,  127.)  But 
the  law  under  which  the  commissioners  were  acting,  directed 
that  the  whole  fractional  section  should  be  "  laid  off  and  subdi- 
vided into  town  lots,  streets  and  alleys"  (Rec,  592);  and 
the  map  of  the  subdivision,  which  was  put  in  evidence,  shows 
upon  its  face  that  the  entire  tract  was  subdivided  in  conform- 
ity to  that  requirement.      (Rec,  1191.) 

In  front  of  the  easterly  row  of  lots,  a  wide  street,  occupying 
the  whole  space  between  them  and  the  lake,  is  laid  out  on  the 
map  styled  "  Michigan  avenue."  One  of  the  witnesses  for 
the  complainant  (Mr.  Scammon)  testifies  that  it  was  the  habit- 


120 


ual  practice  in  laying  out  towns  on  the  shores  of  rivers  in  the 
southern  part  of  the  State,  to  leave  a  wide  margin  along  the 
river  for  a  levee,  and  that  Gen.  Thornton,  who  was  "  the  con- 
"  trolling  spirit  of  the  board  of  commissioners,"  caused  that  plan 
to  be  adopted  by  the  board  in  making  this  subdivision.  Michigan 
avenue  (he  says)  was  laid  out  on  the  plat  as  a  wide  levee  extend- 
ing to  the  lake;  and  the  lots  "  were  prized  a  great  deal  higher 
"  and  brought  a  good  deal  more  money,  because  they  fronted  on 
"this  wide  street  that  extended  to  the  lake."  (Rec,  443.) 
The  map  itself  furnishes  conclusive  evidence  of  the  intention  of 
the  commissioners  to  dedicate  the  entire  strip  to  public  use. 
Village  of  Brooklyn  v.  Smith,  104  111.,  429. 

In  laying  out  the  subdivision,  the  commissioners  appear  to 
have  complied  generally  with  the  provisions  of  the  law  then  in 
force  relating  to  town  plats.  (Ante,  pp.  11,  12.)  The  only 
deviation  worthy  of  notice  is,  that  the  surveyor's  certificate 
w7as  made  by  an  engineer  in  the  employment  of  the  canal  com- 
missioners, instead  of  the  county  surveyor;  but  the  Supreme 
Court  of  the  State  seem  to  have  decided,  that  in  the  case  of 
plats  made  by  the  canal  commissioners  such  a  departure  from 
the  strict  letter  of  the  law  is  not  material. 

City  of  Chicago  v.  Rumsey,  87  111.,  348. 
Zinc    Company    v.     City  of  La  Salle,   117   111., 
411. 

Although,  as  held  in  a  recent  decision,  when  land  is  laid  out 
by  other  proprietors  than  the  State,  if  the  plat  is  hot  certified 
by  the  county  surveyor,  the  legal  title  to  the  streets  does  not 
vest  in  the  town  or  city. 

Village  of  Auburn  v.  Goodzvin,  128  111.,  57. 

If  the  plat  in  question  is  to  be  regarded  as  statutory,  the 
legal  title  to  the  ground  designated  thereon  as  Michigan  ave- 
nue became  vested  in  the  town  of  Chicago,  upon  the  recording 


V 


121 


of  the  plat,  The  plat  in  such  case  has  all  the  force  of  an  ex- 
press grant.  It  operates  by  way  of  estoppel,  and  concludes 
the  former  owner  and  all  claiming  under  him  from  asserting 
title.  Upon  the  vacation  of  the  streets,  the  title  reverts  to  the 
former  owner;  but  until  the  estate  is  thus  defeated,  it  is  held 
that  i he  fee  is  as  completely  out  of  him  as  if  he  had  made  an 
absolute  conveyance.  "  While  the  fee  continues  in  the  cor- 
"  poration,  he  has  no  greater  interest  in  the  streets  and  alleys 
"  than  any  other  person — the  right  of  passage  over  them. 
"  Having  neither  the  legal  title  nor  the  exclusive  right  of  pos- 
"  session,  he  cannot  bring  trespass  for  any  injury  to  the  soil  or 
"  freehold.  He  has  no  title  to  be  assailed,  no  possession  to  be 
"  invaded." 

Zinc    Company    v.    City  of  La  Salle,    117  HL> 

4H>  4I5- 
Gebhardt  v.  Reeves,  75  111.,  301. 

Hunter  v.  Middleton,  13  111.,  50. 

Canal  Trustees  v.  Havens,  11  111.,  554. 
■• 
If  it  was  not  a  statutory  plat,  although  the  legal  title  to  the 
streets  did  not  vest  in  the  town,  the  public  acquired  the    same 
rights  it  would  have  had    in  them  if  the  fee  had  passed  to  the 
municipality. 

Mayzvood  Company  v.  Village  of  May  wood,  1 1 8 

111.,  61. 
Gould  v.  Howe,  131  111.,  490. 

The  lots,  it  is  proved,  were  sold  by  the  commissioners  as 
\laid  out  upon  the  plat  and  with  reference  to  the  plat.  The 
purchasers  of  the  lots,  therefore,  acquired  a  special  interest  in 
the  streets  on  which  their  lots  abutted.  It  is  manifest  that 
neither  the  canal  commissioners  nor  the  State  could  after  the 
sale  of  the  lots,  make  any  disposition  of  the  streets  inconsistent 
with  the  use  to  which  they  had   been  dedicated. 

In  either  case,  it  is  clear  that  after  the   sale  of  the  lots  there 


122 

was  no  canal  land  left   in  fractional   section   fifteen  undisposed 
of. 

The  grant  made  by  the  State  to  the  canal  trustees  in  1843, 
to  secure  the  payment  of  the  loan  then  about  to  be  negotiated 
(ante,  p.  13),  included  the  canal  and  "all  the  remaining  lands 
and  lots  belonging  to  the  canal  fund."  The  supplemental 
Act  of  March  1,  1845  (ante,  p.  14),  provided  for  the  execu- 
tion of  a  deed  to  the  canal  trustees  as  security  for  the  loan, 
which  was  to  "  include  the  lands  and  lots  remaining  unsold 
donated  by  the  United  States  to  the  State  of  Illinois,  to  aid 
in  trie  completion  of  the  said  canal." 

In  the  deed  executed  by  the  Governor  June  26,  1845  (ante, 
p.  14),  these  Acts  are  recited  at  length,  and  it  is  declared  that 
the  conveyance  is  made  "  to  and  for  the  uses  and  purposes  in 
"  said  Acts  expressed  and  intended."  No  lands  were  specific- 
ally described  in  either  of  the  two  Acts  or  in  the  Governor's 
deed;  and  as  the  State  had  then  no  property  left  in  fractional 
section  fifteen  available  for  canal  purposes,  it  is  apparent  that 
no  land  in  that  section  passed  under  the  general  description 
contained  in  the  Acts  and  deed. 

It  is  not  pretended  that  the  canal  trustees  ever  asserted  title 
to  the  public  ground  in  that  section.  The  theory  that  they 
had  a  title  is  a  late  invention,  first  announced  in  1884  (Rec, 
43) — a  year  after  the  institution  of  the  present  suit,  and  more 
than  forty  years  subsequent  to  the  act  of  1843. 

But  the  grant  to  the  canal  trustees,  whatever  it  included, 
was  made  in  trust,  to  secure  a  loan.  It  was  an  express  con- 
dition of  the  trust,  that  when  the  debt  should  be  paid  the  canal 
and  the  remaining  canal  property  and  assets  should  revert  to 
the  State.  The  legal  title  to  the  property  covered  by  the 
trust  passed  to  the  board  of  trustees,  but  an  equitable  estate 
remained  in  the  State.  It  was  competent  for  the  legislature 
to  transfer  this   estate   at   its   pleasure.     Any  mortgagor  may 


123 

sell  and  convey  his  equity  of  redemption  in  a  tract  of  land; 
and  no  reason  is  or  can  be  suggested  why  this  right  may  not 
be  exercised  by  a  sovereign  Stale,  which,  in  addition  to  the 
ordinary  rights  of  a  land  owner,  has  also  the  power  to  enact 
laws.  The  charter  of  1 85 1 ,  and  the  Act  of  1869,  by  which 
cessions  of  land  were  made  to  the  railroad  company,  were  en- 
acted by  the  legislature  and  have  the  force  of  laws.  As  the 
right  of  (he  legislature  to  make  the  laws  is  unquestionable,  it 
is  impossible  to  impeach  the  validity  of  the  grants.  If  any  of 
the  property  ceded  was  covered  by  the  trust  created  to  secure 
the  payment  of  the  canal  debt,  the  company  took  the  encum- 
bered portion  subject  to  the  trust,  just  as  one  who  buys  mort- 
gaged property  takes  subject  to  the  mortgage;  but  when  the 
debt  was  paid  and  the  trust  terminated,  the  title  of  the  com- 
pany became  absolute  and  indefeasible.  It  is  proved  that  the 
trust  was  fully  executed  and  the  canal  debt  extinguished  in 
1871.      (See  ante,  p.  15.) 

The  fact  is,  moreover,  that  no  ground  is  occupied  by  the 
railroad  company  which  in  1852  formed  part  of  fractional  sec- 
tion fifteen.  The  railroad  was  located  and  built  in  front  of 
the  public  ground,  at  some  distance  from  the  shore,  in  the 
open  waters  of  the  lake.  Some  portion  of  the  ground  occupied 
—how  much  is  uncertain — appears  to  have  been  dry  land  in 
1836;  but  in  1852  all  of  it  was  covered  by  water,  varying  in 
depth  in  different  places  from  two  and  a  half  to  nine  feet. 
(See  ante,  p.  9.)  It  had  ceased  to  be  part  of  fractional  section 
fifteen,  and  had  become  part  of  the  bed  of  the  lake. 

6.  Lastly,  it  has  been  contended  that  the  grant  made  to  the 
railroad  company  by  the  Act  of  1869  was  annulled  by  Section 
2,  Article  XI,  of  the  constitution  of  1870,  which  went  into 
effect  August  8,  :  870. 


124 

Article  XI  of  the  constitution  of  1870  is  entitled  "  Corpora- 
tions ".  It  contains  fifteen  sections,  all  of  which  relate  to  the 
subject  of  corporations.     The  first  two  sections  are  as  follows: 

"  Sec.  1.  No  corporation  shall  be  created  by  special  laws, 
'  or  its  character  extended,  changed  or  amended,  except  those 
'  for  charitable,  educational,  penal  or  reformatory  purposes, 
4  which  are  to  be  and  remain  under  the  patronage  and  control 
'  of  the  State,  but  the  general  assembly  shall  provide,  by 
'  general  laws,  for  the  organization  of  all  corporations  here- 
'  after  to  be  created. 

"Sec.  2.  All  existing  charters  or  grants  of  special  or  exclu- 
'  sive  privileges,  under  which  organization  shall  not  have  taken 
'  place,  or  which  shall  not  have  been  in  operation  within  ten 
'  days  from  the  time  this  constitution  takes  effect,  shall  there - 
'  after  have  no  validity  or  effect  whatever." 

The  remaining  sections  prescribe  certain  general  rules 
for  the  regulation  and  government  of  incorporated  companies; 
and  no  provision  is  found  in  the  article  on  any  subject  not 
directly  and  closely  connected  with  the  exercise  of  corporate 
powers. 

The  second  section  forms  no  exception.  The  object  of  that 
provision  is  well  understood  by  the  profession  in  Illinois,  and  is 
clearly  enough  disclosed  by  its  own  words.  In  anticipation  of  a 
revision  of  the  constitution  of  1848,  and  of  the  restraints  which 
would  probably  be  placed  upon  the  legislative  power  of  grant- 
ing special  charters  to  private  corporations,  a  great  many  pri- 
vate Acts  of  incorporation  had  been  procured  between  1865 
and  1870,  under  which  no  organization  had  been  effected,  and 
which  were  then  held  by  the  corporators  for  sale  or  transfer 
to  other  parties,  as  opportunity  might  occur.  The  private 
laws  of  1865  filled  two  large  octavo  volumes;  those  enacted 
in  1867,  three  volumes;  and  those  enacted  in  1869,  four  vol- 
umes.    The  object  of  this  constitutional  provision  was   to   va- 


125  480 

cate  all  charters  under  which  no  rights  should  become  vested 
within  the  time  designated;  and  the  enactment  applies  only  to 
"  charters  or  grants  of  special  or  exclusive  privileges." 

The  Act  of  1869  was  neither  a  charter  nor  a  grant  of  special 
or  exclusive  privileges.  It  contained  a  grant  of  land  to  a  cor- 
poration already  organized,  and  took  effect  immediately  upon 
its  passage.  It  was  not  the  object  of  this  clause  of  the 
constitution  to  revoke  any  grant  of  public  property  which  the 
State  had  made.  Such  grants  could  not  be  revoked  by  the 
State,  either  by  legislative  Act  or  by  amending  the  constitu- 
tion. The  grant  made  by  the  Act  of  1869  was  formally  ac- 
cepted by  the  railroad  company  before  the  constitution  of  1870 
went  into  effect,  and  it  was  assented  to  and  informally  accepted 
immediately  after  the  passage  of  the  Act.  Notice  of  the  ac- 
ceptance was  on  file  in  the  office  of  the  Secretary  of  State, 
and  a  large  amount  of  money  had  been  already  expended  by 
the  company  in  improvements  upon  the  property. 

XV.  The  pretensions  of  the  city  of  Chicago  to  a  part  of 
the  land  in  controversy  remain  to  be  considered. 

1.  The  claim  is  advanced  by  the  city  in  its  answer  to  the 
amended  information  and  in  the  cross-bill,  that  it  had  acquired 
a  vested  interest  in  the  submerged  land  lying  east  of  the 
breakwater  between  Randolph  street  and  Park  Row,  before 
April  16,  1869,  of  which  it  could  not  be  deprived  .by  the  leg- 
islature without  compensation.  For  this  reason,  it  is  insisted 
that  the  grant  made  to  the  railroad  company  by  the  Act  of 
1869  was  invalid,  and  the  repeal  of  the  Act  in  1873  was, 
therefore,  free  from  constitutional  objection. 

There  is  often  no  better  way  of  refuting  an  extravagant 
proposition  than  by  stating  it  clearly.  The  contention  is,  that 
by  the  making  and  recording  of  the  plats  of  Fractional  Section 
Fifteen  Addition  (in  1836)  and    Fort  Dearborn    Addition    (in 


126 

1839)?  the  legal  title  to  the  public  ground  lying  east  of  Michi- 
gan avenue,  between  Randolph  street  and  Park  Row,  became 
vested  in  the  city,  with  all  the  littoral  rights  appertaining  to  the 
land  as  it  was  then  situated.  These  rights,  it  is  asserted,  were 
rights  of  private  property  vested  in  the  city,  which  are  pro- 
tected from  disturbance  by  the  legislature,  both  by  the  consti- 
tution of  Illinois  and  the  constitution  of  the  United  States. 
(Rec,  106,  107,  113,  114.) 

The  moment  we  examine  this  theory  closely  it  is  seen  to  be 
fallacious.  We  are  not  obliged  to  enter  upon  the  question, 
whether  it  was  the  legal  effect  of  the  plats,  or  either  of  them, 
to  vest  the  fee  of  the  streets  in  the  city.  If  it  be  conceded  that 
they  had  such  effect,  it  is  perfectly  clear  that  the  city  took  and 
held  the  title  wholly  for  public  purposes.  It  acquired  no  pri- 
vate, beneficial  interest  in  the  streets.  It  could  not  alien  or 
otherwise  dispose  of  them  for  its  own  private  benefit.  At  most, 
it  held  a  naked  legal  title  in  trust  for  the  benefit  of  the  public 
— not  exclusively  the  citizens  of  Chicago,  but  all  the  inhabi- 
tants of  the  State. 

City  of  Alton  v.  Illinois  Trans.  Co.,  12  111.,  38, 60. 

Stack  v.  City  of  St.  Louis,  85  111.,  377. 

Kreigh  v.  City  of  Chicago,  86  111.,  407. 

Lee  v.  Town  of  Mound  Station,  118  111.,  305. 

The  title  was  held  by  the  city  in  its  political  capacity  only, 
as  a  mere  agency  of  the  State,  for  the  benefit  of  the  general 
public;  and  the  trust  being  -publici  juris,  it  was  under  the 
supreme  control  of  the  legislature. 

City  of  Chicago  v.  Rumsey,  87  111.,  348,  355. 

The  People  v.    Walsh,  96  111.,  232. 

Harris  v.  Board  of  Supervisors,  105  111.,  445. 

Lyman  v.  Gcdney,  114  111.,  388. 

East  Hartford 'v.  Hartford  Bridge  Co.,  10  How., 

5"- 


127 

Meriwether  v.  Garrett,  102  U.  S.,  472. 
Hoboken  v.  Penn.  Railroad  Co.,  124  U.  S.,  657, 

693- 
The  People  v.  Kerr,  27  N.  Y.,  188. 

City  of  Clinton  v.  Cedar  Rapids  and  Mo.  R.  R. 

Co.,  24  Iowa,  455. 

2  Dillon's  Munic.  Corp.,  Sects.  656-7. 

In  the  City  of  Chicago  v.  Rumsey,  supra,  a  question  arose 
as  to  the  right  of  the  legislature  to  authorize  the  occupation  of 
a  portion  of  one  of  the  streets  of  Chicago,  which  had  been  laid 
out  by  the  canal  commissioners  on  a  recorded  plat,  for  an  ap- 
proach to  a  tunnel  under  the  river.  In  the  argument,  the 
point  was  made  that  the  plat  was  not  properly  acknowledged, 
and,  therefore,  that  the  fee  in  the  street  was  not  vested  in  the 
city.     Referring  to  that  question,  the  court  say : 

"  We  do  not  regard  it  of  any  practical  importance  whether 
"  it  is  more  technically  accurate  to  say  the  fee  of  this  street  is 
"  in  the  State,  or  in  the  city.  If  it  shall  be  said  to  be  in  the 
"  corporation,  there  can  be  no  pretense  for  saying  that  it  is  in 
"  it  otherwise  than  as  an  agency — a  mere  creature  of  the 
"  State— existing  only  by  authority  of  the  legislature,  and  at 
"  all  times  under  its  paramount  supervision  and  control;  and 
61  if  it  shall  be  said  to  be  in  the  State,  it  can  only  be  said  to  be 
"  there  for  the  purpose  of  holding  it  for  a  street  of  the  city; 
"  and  in  either  case,  the  sole  purpose  and  end  to  be  attained  is 
"  precisely  the  same — the  holding  it  for  the  uses  of  a  street  of 
"  the  city  for  the  benefit  of  the  public — not  the  citizens  of  the 
"  city  alone,  but  the  entire  public  of  which  the  legislature  is 
"  the  representative.  There  could,  therefore,  be  no  necessity 
"  for  any  formal  act  of  conveyance  or  dedication  of  the  fee;  it 
"  was  already  as  completely  under  the  paramount  authority 
"  and  control  of  the  legislature  as  it  could  possibly  be  for  the 
"  purposes  of  a  street,  and  no  conveyance  or  formal  act  of  ded- 


Hb  «^ 


128 


"  ication  by  the  State  to  the  municipality  could  have  invested 
"  it  with  a  more  exclusive  interest  in  or  control  over  the  street, 
"  than  was  done  by  the  Act  of  the  legislature  directing  it  to  be 
"  laid  out  as  such.  Cities,  towns,  etc.,  possess  and  can  exer- 
"  cise  only  such  authority  and  control  in  regard  to  their  streets 
*'  as  may  be  delegated  by  the  legislature.  Thev  have  no  in- 
"  herent  power  or  authority  in  this  respect,  and  can  act  only 
"  in  subordination  to  the  paramount  authority  of  the  legisla- 
"  ture." 

In  East  Hartford  v.  Hartford  Bridge  Co.,  supra,  it  was  held 
to  be  competent  for  the  legislature  to  withdraw  from  a  town  a 
ferry  franchise  which  had  been  previously  granted  to  it.  The 
decision  is  put  upon  the  ground  that  legislative  acts  conferring 
such  privileges  upon  towns  must  be  regarded  rather  as  public 
laws  than  as  contracts.  They  relate  to  public  interests;  and 
the  grantees,  being  mere  organizations  for  public  purposes,  are 
liable  to  have  their  public  powers,  rights  and  duties  modified 
or  abolished  at  any  moment  by  the  legislature.  "  They  are  in- 
"  corporated,  "  say  the  court,  "  for  public,  and  not  private, 
"  objects.  They  are  allowed  to  hold  privileges  or  property 
"  only  for  public  purposes.  The  members  are  not  shareholders, 
"  nor  joint  partners  in  any  corporate  estate,  which  they  can 
"  sell  or  devise  to  others,  or  which  can  be  attached  or  levied 
"  on  for  their  debts.  Hence,  generally,  the  doings  between 
u  them  and  the  legislature  are  in  the  nature  of  legislation  rather 
"  than  compact,  and  subject  to  all  the  legislative  conditions 
"  just  named,  and  therefore  to  be  considered  as  not  violated  by 
"  subsequent  legislative  changes.  " 

In  Hoboken  v.  Penn.  Railroad  Co.,  supra,  it  was  held  that 
the  State  of  New  Jersey,  being  the  absolute  owner  of  the  land 
under  tide  water,  had  the  right  to  make  a  grant  of  such  land 
adjacent  to  the  shore,  discharged  from  any  easement  the  city 
may  have  had  in  front  of  streets  which  extended  to  the  water. 


4< 


129 


41  The  public  right  represented  by  the  plaintiff  (the  city)  is,  v 
it  is  said,  "  subordinate  to  the  State  and  subject  to  its  control. 
"The  State  may  release  the  obligation  to  the  public,  mav  dis- 
"  charge  the  land  of  the  burden  of  the  easement,  and  extin- 
"  guish  the  public  right  to  its  enjoyment.  Whatever  it  may 
"  do  in  that  behalf  conclusively  binds  the  local  authorities, 
"  when,  as  in  the  present  cases,  the  rights  of  action  are  based 
"  exclusively  on  the  public  right.  " 

In  The  People  v.  Kerr,  supra,  it  is  held,  that  although  an 
indefeasible  title  in  fee  to  the  streets  in  the  city  of  New  York 
is  vested  in  the  municipality,  yet  "  this  is  a  trust  for  the  bene- 
"  fit  of  the  public,  not  of  the  adjacent  proprietors  alone,  nor  of 
"  the  inhabitants  or  citizens  of  New  York  alone,  but  of  the 
"whole  people.  The  whole  people  have  the  same  rights  in 
"  the  highway  uses  of  such  a  public  street  as  the  inhabitants  of 
"  the  city  or  the  owners  of  adjacent  land.  The  title  thus  vested 
"  in  the  city  of  New  York  is  as  directly  under  the  power  and 
"  control  of  the  legislature,  for  any  public  purposes,  as  any 
"  property  held  directly  by  the  State,  or  by  any  public  body 
"  or  officer,  and  its  application  cannot  be  challenged  by  a  cor- 
"  poration,  which,  in  respect  to  such  property,  at  least,  is  a 
"  mere  agent  of  the  sovereign  power  of  the  people." 

In  City  of  Clinton  v.  Cedar  Rapids  and  Mo.  R.  R.  Co.,  supra, 
the  Supreme  Court  of  Iowa,  speaking  through  Chief  Justice 
Dillon,  say:  "  The  true  view  is  this:  Municipal  corporations 
"  owe  their  origin  to,  and  derive  their  powers  and  rights 
"  wholly  from,  the  legislature.  It  breathes  into  them  the 
"breath  of  life,  without  which  they  cannot  exist.  As  it 
"  creates,  so  it  may  destroy.  If  it  may  destroy,  it  may  abridge 
"  and  control.  Unless  there  is  some  constitutional  limit  on  the 
"  right,  the  legislature  might  by  a  single  Act,  if  we  can  sup- 
pose it  capable  of  so  great  a  folly  and  so  great  a  wrong, 
"  sweep  from  existence  all  of  the  municipal  corporations  of  the 
"  State,  and  the  corporation  could  not  prevent   it.      We   know 


-%.  *^ 


130 


"  of  no  limitation*  upon  this  right  so  far  as  the  corporations 
"  themselves  are  concerned.  They  are,  so  to  phrase  it,  the 
"  mere  tenants  at  will  of  the  legislature.  .  .  .  But  while 
"  the  corporation  exists,  and  has  been  allowed  to  acquire  pri- 
"  vate  property,  such  property  is  doubtless  protected  by  the 
"  constitutional  provision  the  same  as  the  private  property  of 
'<  the  citizen.  The  distinction  is  just  here.  A  city  by  its  con- 
"  stituent  Act  may  be  authorized  to  acquire  property  for  a 
"  market-house,  a  public  hall  or  the  like.  Of  this  property  the 
"  city  cannot  be  deprived  by  legislative  Act,  except  it  be  taken 
"  for  public  use,  and  if  so  taken,  the  city  is  entitled  to  compen- 
"  sation.  But  its  property  in  the  -public  streets  is  not  of  this  na- 
"  ture.  The  city  cannot  alien  it,  nor  use.  it  for  any  other  than 
"  legitimate  purposes.  Over  the  use  of  property  acquired  by 
"  the  exercise  of  the  right  of  eminent  domain,  or  dedicated 
"  under  the  statutes  to  public  use,  when  the  soil,  the  fee, 
"  passes  from  the  dedicator,  the  legislature,  so  far  as  regards 
"  the  rights  of  public  corporations,  possesses  an  unlimited  con- 
"  trol." 

The  theory  maintained  by  the  city  is  diametrically  opposed 
to  the  principles  established  in  the  foregoing  cases.  It  rests 
upon  the  unfounded  assumption  that  the  streets  and  public 
grounds  in  the  city  are  held  by  the  same  tenure  as  private 
property  owned  by  individuals.  This  clearly  is  not  the  law. 
The  city  had  no  vested  private  interest  in  the  public  ground 
on  the  lake  shore,  and  could,  therefore,  have  no  private  inter- 
est in  the  littoral  rights,  which  are  simply  incidents  of  the 
principal  estate.  It  held  the  title  for  public  purposes  only,  and 
as  a  trustee  for  all  the  people  of  the  State,  of  whom  the  legis- 
lature is  the  sole  representative. 

It  is  not  pretended  that  the  city  has  ever  constructed  a  wharf 
east  of  the  breakwater,  or  made  any  expenditures  for  improve- 
ments in  that  part  of  the  lake.  No  title  to  the  soil  under  wa- 
ter was  ever  granted  to  the  city,  nor  has  it  ever  had  possession 


4! 

of  any  part  of  the  lands  in  controversy.  It  is,  therefore,  evi- 
dent that  the  act  of  1869  deprived  the  city  of  no  property  in 
the  bed  of  the  lake,  nor  did  it  impair  any  vested  rights  of  the 
city  or  the  obligation  of  any  contract. 

Reference  is  made  in  the  answer  and  cross-bill  filed  by  the 
city  to  several  Acts  of  the  legislature  passed  prior  to  1869 
(Rec,  106-7,  1 1 3-14),  which,  it  is  contended,  furnish  some 
support  to  the  claim  now  under  examination.  By  these  acts 
certain  general  powers  were  conferred  upon  the  common  coun- 
cil of  Chicago,  and,  among  them,  the  following: 

By  the  Act  of  March  4,  183J — by  which  the  city  was  first 
incorporated, — 

"To  prevent  all  obstructions  in  the  waters  which  are  public 
"  highways  in  said  city." 

"  To  lay  out  .  .  .  streets  ...  in  said  city,  and 
"  make  wharves  and  slips  at  the  end  of  the  streets,  on  prop- 
erty belonging  to  the  city."      (Rec,  537.) 

By  the  Act  of  February  16,  184.J — 

"  To  lay  out  .  .  .  streets  ...  in  said  city,  and 
"  make  wharves  and  slips  at  the  end  of  streets." 

"  To  build  and  construct  a  breakwater  or  barrier  along  the 
"  shore  of  Lake  Michigan  for  the  protection  of  the  said  city 
"  against  the  encroachments  of  the  water." 

"To  pass  all  such  ordinances  as  they  may  think  proper  to 
"  preserve  the  harbor;  ...  to  prevent  and  remove  all 
"  obstructions  therein,  and  to  punish  the  authors  thereof. 
"  .  .  .  The  word  '  harbor,'  as  used  in  this  section,  shall 
"  be  taken  and  deemed  to  include  so  much  of  Lake  Michigan 
"  as  lies  within  the  distance  of  one  mile  from  the  shore  thereof, 
"into  the  lake,  and  the  Chicago  river  and  its  branches,  includ- 
"  ing  the  piers."   (Rec.  539-40). 


132 


By  the  act  of  February  14.,  1851 — 

"  To  lease  the  wharfing  privileges  of  the  river,   at  the   end 

"  of  streets." 

"  To  preserve  the  harbor;  ...  to  prevent  and  re- 
"  move  all  obstructions  therein,  and  to  punish  the  authors 
"  thereof." 

"  To  levy  and  collect  taxes  .  .  .  for  the  erection  of  a 
"  barrier  to  protect  the  city  from  the  lake." 

"  To  lay  out  public  squares  or  grounds,  streets,  alleys, 
"  lanes  and  highways,  and  to  make  wharves  and  slips  at  the 
"  ends  of  streets."    (Rec.  540-542). 

By  the  act  of  February  ij,  i86j,  the  last  provisions  were  re- 
enacted,  with  the  exception  of  the  clause  authorizing  taxes 
to  be  levied  for  the  erection  of  a  barrier  to  protect  the  city 
from  the  lake.   (Rec.  545—6). 

These  were  all  the  powers  relating  to  the  construction  of 
wharves  and  slips,  which  were  granted  to  the  city  prior  to  the 
passage  of  the  Act  of  April  16,  1869.  The  contention  is,  that 
they  authorized  the  city  to  construct  wharves  and  slips  in  the 
waters  of  the  lake,  in  front  of  the  public  ground  between 
Randolph  street  and  Park  Row,  and  that  the  power  was  ir- 
revocable. 

The  suggestion  is  utterly  preposterous.  The  authority  con- 
ferred was,  to  "  make  wharves  and  slips  at  the  ends  of  streets  "; 
and  as  there  were,  in  fact,  no  streets  ending  at  the  lake,  be- 
tween the  mouth  of  the  river  and  Sixteenth  street,  prior  to  the 
extension  of  Randolph  street  in  1880,  it  is  plain  that  the  city 
could  not  without  an  usurpation  of  power  construct  a  wharf 
anywhere  on  the  premises  in  controversy.  The  practical  con- 
struction put  upon  these  provisions  of  the  old  charters  always 
was,  that  they  related  only  to  wharves  and  wharfing  privileges 


133 


at  the  ends  of  the  streets  terminating  at  the  river.  There 
wharves  were  built  bv  the  city,  but  nowhere  else.  It  was  not 
until  1854  tnat  any  Part  °f  tne  ^a^e  was  eyen  included  within 
the  corporate  limits  of  the  city  (Rec.  543),  although  police 
jurisdiction  was  exercised  over  the  adjacent  waters  vvithin  one 
mile  of  the  shore. 

The  ground  which  was  appropriated  by  the  railroad  com- 
pany in  1852  in  front  of  the  shore,  was  then  outside  of  the 
boundaries  of  the  city.  By  that  occupation  a  strip  of  land 
two  hundred  feet  in  width  was  interposed  between  the  public 
ground  and  the  lake.  This  was  done  with  the  consent  of  the 
common  council  and  pursuant  to  the  terms  of  a  formal  con- 
tract between  the  city  and  the  company  executed  under  their 
corporate  seals.  The  company  was  entitled  to  the  exclusive 
possession  of  that  strip,  and,  as  we  insist,  was  also  the  owner 
in  fee.  The  city  reserved  no  right  to  construct  wharves  be- 
yond it.  It  did  not  have  even  the  right  of  access  to  the  water 
east  of  the  breakwater.  It  had  no  street  or  other  ground 
upon  the  shore  in  contact  with  the  navigable  water.  This  was 
the  situation  in  1854,  wnen  the  city  limits  were  extended,  and 
it  remained  unchanged  in  1869. 

The  rule  of  strict  construction  is  applied  by  the  courts  to 
charters  of  public  as  well  as  private  corporations.  Any  rea- 
sonable doubt  as  to  the  extent  of  the  authority  conferred, 
especially  if  it  relates  to  a  matter  extra  municipal  in  its  nature, 
or  affects  the  right  of  the  State  to  the  control  and  disposition 
of  its  own  property,  will  be  determined  against  the  corpora- 
tion. As  has  been  said  by  this  court,  "  it  is  a  well  settled  rule 
"  of  construction  of  grants  by  the  legislature  to  corporations, 
"  whether  -public  or  private,  that  only  such  powers  and  rights 
"  can  be  exercised  under  them  as  are  clearly  comprehended 
"  within  the  words  of  the  Act  or  derived  therefrom  by  neces- 
"  sary  implication,   regard   being  had    to   the    objects  of  the 


"  grant.  Any  ambiguity  or  doubt  arising  out  of  the  terms 
"  used  by  the  legislature  must  be  resolved  in  favor  of  the 
"  public." 

Minturn  v.  Larue,  23  How.,  436. 
The  same  principle  has  been   repeatedly  declared   by    the 
courts,  in  a  variety  of  cases. 

See  1  Dillon's  Munic.  Corp.,  Sects.  89-91,  and 
cases  there  cited. 
To  give  to  the  terms  of  the  old  charters  the  effect  con- 
tended for  by  the  city,  this  rule  must  be  completely  reversed. 
Another  rule  of  law  must  also  be  violated.  The  right  given 
to  construct  wharves  at  the  ends  of  streets,  was  nothing  more 
than  a  license,  revocable,  in  respect  to  any  street,  at  any  time 
before  it  had  been  acted  upon.  Like  all  other  municipal  pow- 
ers of  a  public  character,  it  was  subject  to  legislative  control 
and  could  be  modified,  restrained  or  entirely  withdrawn  as  the 
public  exigencies  might  require. 

United  States  v.  Railroad  Company,  17   Wall.. 
322,  328-9. 

Mount  Pleasant   v.   Beckwith,    100  U.   S.,  514, 

525. 
Railroad  Company  v.  Eller?nan,  105  U.  S.,  166. 

Williamson  v.  New  Jersey,  130  U.  S.,  189. 

Essex  Public  Road  Board  v.  Skinkle,  140  U.  S., 

334- 

New  Orleans  v.  N  O.   Water  Works    Co.,    142 

U«  S.,  79. 
2  Dillon's  Munic.  Corp.,  Sees.,  68,  103,  no  n. 

2.  These  objections  of  the  city  to  the  Act  of  1869,  were 
not  sustained  in  the  court  below.  But  effect  having  been 
given  to  the  repealing  Act,  it  was  thereupon  decided  that  the 
city  as  riparian  owner,  and  by  virtue  of  authority  conferred  by 
its  charter,  has  the  power  to  erect  and  maintain  public    landing 


i35 


places,  wharves,  docks  and  levees,  east  of  the  railroad,  be- 
tweeen  the  nonh  line  of  Randolph  street  and  the  north  line  of 
block  23,  subject  to  the  authority  of  the  State  by  legislation  to 
establish  an  exterior  dock  line,  and  to  such  supervision  and 
control  as  the  United  States  may  lawfully  exercise  in  and  over 
the  harbor.      (Rec.  222.) 

If  the  grant  made  to  the  railroad  company  in  1869,  was 
valid,  and  it  was  incompetent  for  the  State  to  recall  it,  this 
ruling  must  obviously  be  reversed;  and  the  same  result  will 
follow,  if  it  shall  be  held  that  the  city  was  not  in  fact  the  ripa- 
rian owner.  The  first  two  questions  have  been  already  dis- 
cussed.    The  last  remains  to  be  considered. 

Riparian  rights  are  rights  incident  to  land  contiguous  to  the 
water.  According  to  the  uniform  tenor  of  all  the  authorities, 
the  party  claiming  such  rights  must  show  that  he  owns  or  has 
the  exclusive  right  to  occupy  and  use  the  shore.  "  They  do 
not  attach  to  any  lands,  however  near,  which  do  not  extend  to 
the  water." 

Potomac  Steamboat   Co  v.  Upper  Pot.  Co.,    109 

U.  S.,  672,  682-3. 
Saulet  v.  Sheppard,  4  Wall.,   502. 
Bates  v.  Illinois  Central  R.   R.    Co.,   1  Black, 

204. 
yones  v.  'Johnson,  18  How.,  150. 
Bristol  v.  County  of  Carroll,  95  111.,  84. 
Gould  on  Waters,  Sec.  148. 

Does  the  city  own  any  land  in  contact  with  the  lake? 
On  this  question,  the  learned  judges  below  differed  in  opinion. 
One  thing  is  clear:  The  land  next  to  the  lake  is  occupied  by 
the  railroad  company,  and  it  has  been  decided  in  this  case  that 
the  company  is  entitled  to  the  exclusive  possession  and  control 
of  it  in  perpetuity.     It  is  held,  in  the   prevailing   opinion,   that 


136 

the  company  has  only  an  easement,  and  that  the  fee  is  in  the 
city. 

If  this  ruling  were  correct,  the  result  reached  in  the  Circuit 
Court  would  not  necessarily  follow.  Strong  support  is  fur- 
nished by  the  authorities  for  the  proposition,  that  a  railroad 
company  which  acquires  a  perpetual  right  to  the  exclusive  use 
and  possession  of  land  abutting  upon  navigable  waters,  is  also 
entitled  to  enjoy  the  riparian  rights  incident  to  the  land  (if 
there  has  been  no  reservation  of  them  by  the  former  proprietor), 
although  it  does  not  own  the  fee. 

Hanford  v.  Si.  Paul  and  D.  R.  Co.,  43  Minn., 
104. 

Godfrey  v.  Alton.  12  111.,  30. 

Cook  v.  Burlington,  30  Iowa,  94. 

JVezu  Orleans  v.  United  States,  10  Pet.,  662. 

Barney v.  Keokuk,  94  U.  S.,  324. 

Potomac  Steamboat  Co.  v.  Upper  Pot.  S.  Co., 
109  U.  S.,  672. 

So  if  land  bordering  upon  a  lake  or  a  navigable  stream  is 
leased,  the  lessee  will  hold  the  accretions  precisely  as  he  does 
the  land  to  which  they  have  become  attached.  If  it  is  mort- 
gaged, or  under  any  other  lien,  all  subsequent  accretions  will 
come  under  the  same  burdens  as  those  to  which  the  land  was 
subject  before  the  accretions  were  formed.  And  so,  the  widow 
of  a  riparian  owner  is  entitled  to  dower  in  the  accretions  to 
the  land  of  which  her  husband  was  seized  during  coverture, 
whether  they  accrued  whilst  he  owned  the  land  or  after 
he  parted  with  the  title.  In  this,  as  in  other  like  cases,  the  in- 
cidents necessarily  follow  and  are  subject  to  the  nature  and  con- 
dition of  the  principal  estate. 

Cobb  v.  Lavalle,  89  111.,  331. 

Gale  v.  Kinzie,  80  111.,  132. 

Lombard  v.  Kinzie,  73  111.,  446. 


137 


But  how,  it  may  be  pertinently  asked,  did  the  city  acquire  a 
title  to  the  ground  occupied  by  the  railroad  company  r*  It  is 
certainly  no  part  of  the  land  dedicated  to  the  public  on  the  plats 
of  Fractional  Section  Fifteen  Addition  and  Fort  Dearborn  Ad- 
dition to  Chicago;  nor  is  it  held  by  the  city  on  the  same  trust. 
Before  the  railroad  was  built,  the  land  belonged  to  the  State. 
It  was  occupied  by  the  company  with  the  consent  of  the  city, 
but  the  right  to  take  it  was  derived  from  the  State,  under  the 
grant  to  the  company  in  its  charter. 

It  is  said  in  the  opinion  last  referred  to",  that  the  city  had  the 
right  as  riparian  owner,  before  the  passage  of  the  ordinance 
of  1852,  to  fill  in  the  lake  and  erect  walls  to  the  extent  neces- 
sary to  protect  its  property  against  the  violence  of  the  water, 
if  it  did  not  thereby  interfere  with  the  public  rights  of  naviga- 
tion; and  that  power  was  expressly  given  it  to  erect  a  break* 
water  for  that  purpose.  If  it  had  itself  erected  a  breakwater 
on  the  precise  line  adopted  by  the  railroad  company  under  the 
ordinance  of  1852,  and  filled  in  the  space  between  the 
breakwater  and  the  shore,  it  would  have  become,  says  the 
learned  judge,  the  owner  of  all  the  ground  thus  reclaimed  and 
occupied.  But  it  must  be  admitted,  that  whatever  may  have 
been  potentially  the  rights  of  the  city  before  the  railroad  was 
located,  it  could  not,  after  possession  had  been  lawfully  ac- 
quired by  the  railroad  company,  rightfully  invade  that  posses- 
sion for  the  purpose  suggested  or  any  other.  The  city,  as 
matter  of  fact,  erected  no  breakwater  and  acquired  no  title  to 
the  land  occupied  by  the  railroad  company  before  the  pas- 
sage of  the  ordinance  of  1852;  and,  unless,  what  was  done 
by  the  company  pursuant  to  the  terms  of  the  ordinance  in* 
vested  the  city  with  title,  it  acquired  none  afterwards. 

It  is  intimated  in  the  opinion  that  the  city,  instead  of  build- 
ing a  breakwater  itself,  employed  the  railroad  company  to  erect 
<me\  and   when   the   work    was  completed,  and   the    area    set 


138 

apart  for  the  railroad  had  been  filled  in  by  the  company,  and 
the  space  between  the  railroad  and  the  shore  had  been  re- 
claimed by  the  city,  the  latter  became  the  owner  in  fee  of  all 
such  reclaimed  ground,  including  that  occupied  by  the  railroad 
tracks  and  the  breakwater.      (Rec,  202.) 

If  the  work  done  by  the  company  was  really  performed  by 
it  as  an  agent  of  the  city,  there  would  be  some  plausibility  in 
this  theory.  But  if  the  work  was  done  by  the  company  on  its 
own  account, in  the  prosecution  of  the  enterprise  contemplated  in 
its  charter,  namely,  the  construction  of  a  railroad,  no  such 
result  could  possibly  follow. 

The  important  question  then  is,  what  relation  did  the  rail- 
road company  sustain  to  the  city  under  the  ordinance  and  con- 
tract of  1852?  The  object  of  that  ordinance  was  to  provide 
for  the  location  of  the  railroad  within  the  city.  The  route  to 
be  adopted  for  the  road  depended  upon  the  action  of  the  com- 
mon council.  To  obtain  the  requisite  action  was  the  only  ob- 
ject the  company  had  in  view  in  making  application  to  that 
body;  and  nothing  is  contained  in  the  ordinance  which  does 
not  relate  either  directly  or  incidentally  to  that  subject.  The 
consent  granted  by  the  ordinance  was  given  upon  certain  con- 
ditions, one  of  which  was  that  the  company  should  erect  and 
maintain  a  breakwater.  But  in  the  construction  of  that  work 
the  city  was  in  no  sense  a  principal  and  the  company  an  agent. 
The  city  incurred  no  responsibility  to  third  persons  on  con- 
tracts made  by  the  company,  or  for  negligence  or  other 
wrongful  acts  of  the  company  or  its  servants,  in  prosecuting 
the  work;  and  the  work  when  completed  belonged  to  the 
company,  and  not  to  the  city.  The  real  facts  are,  that  the 
company  obtained  the  consent  of  the  city  to  lay  out  and  con- 
struct its  railroad  on  a  certain  prescribed  route,  and  that  it  con- 
tracted certain  obligations.  But  the  reciprocal  rights  and  du- 
ties of  the  parties  do  not  depend  upon  the  principles  of  the  law 


*  > 


(I 


139 

of  agency.     It  is  a    mistake  to  suppose  that  any  relation   of 
agency  was  created  between  them. 

If  these  views  are  correct,  the  title  to  the  land  occupied  by 
the  railroad  company  between  Park  Row  and  Randolph  street 
is  either  in  the  company  or  in  the  State.  We  maintain  that 
the  title  is  vested  in  the  company,  on  grounds  already  suffi- 
ciently explained.  (See  points  HI.  and  VIII).  The  title  is 
deprived  from  the  grant  made  by  the  State  in  the  eompany's 
charter.  It  was  confirmed  by  the  confirmatory  clause  in  the 
Act  of  1869,  which  has  been  held  in  this  case  to  be  valid  and 
irrevocable.  By  the  same  clause  the  company  is  recognized 
as  the  riparian  owner. 

But  whether  the  legal  title  is  in  the  company  or  the  State, 
it  is,  we  respectfully  submit,  perfectly  clear  that  the  city  has  no 
estate  i^tthe  premises,  either  legal  or  equitable,  and  is  entitled 
therefore  to  none  of  the  littoral  or  riparian  rights  which  attach 
to  the  land  next  to  the  water. 


XVI.  If  the  State  is  bound  by  the  Act  of  1869,  tne  infor- 
mation in  this  case  must  be  dismissed. 

The  State  is  entitled  to  no  relief  unless  it  has  the  legal  title 
and  right  of  possession  to  some  part  of  the  premises  in  con- 
troversy. With  the  exception  of  the  small  triangular  piece  of 
ground  next  to  Randolph  street  described  in  the  ordinance  of 
September  10,  1855  (onte9  pp.  19,  20),  and  the  dock  or  slip 
near  the  foot  of  Sixteenth  street,  which  has  been  completed  in 
accordance  with  the  terms  of  the  decree,  [cinte,  pp.  30,  52),  all 
the  lands  occupied  by  the  company,  which  are  involved  in  this 
litigation,  are  within  the  limits  of  the  grant  made  in  the  Act 
referred  to,  or  within  the  operation  of  the  confirmatory  clause 
contained  in  that  Act.  The  submerged  lands  in  dispute  lying 
east  of  the  breakwater,  are  also  within  the  limits  of  the  grant. 


~r 


140 

The  small  triangle  next  to  Randolph  street  was  occupied  by 
the  company,  with  the  consent  of  the  common  council, in  1855. 
The  consent  was  granted  on  conditions  which  have  been  al- 
ready explained.  (See  point  V).  The  right  of  the  company  to 
retain  possession  of  it,  under  the  provisions  of  its  charter  (See 
point  III),  is  too  clear  to  require  further  argument. 

With  respect  to  the  dock  or  slip  near  the  foot  of  Sixteenth 
street,  it  appears  that  a  new  breakwater  was  erected  by  the 
company  at  a, short  distance  from  the  shore,  to  replace  the  old 
structure,  which  had  fallen  into  decay  (ante,  p.  30)  ;  and 
a  slip  of  small  size  has  been  constructed  between  the  break- 
water and  the  shore,  where  vessels  may  enter  to  receive  and 
discharge  their  cargoes.  The  company  is  the  owner  of  the 
land  on  the  shore  (see  ante,  p.  19),  and  has  the  same  littoral 
rights  as  would  belong  to  any  other  owner  ot  the  same  land. 
The  work  is  injurious  to  no  one,  nor  is  it  an  unlawful  encroach- 
ment on  the  domain  of  the  State.      (See  point  VI.) 

It  was  adjudged  by  the  court  below  (ante,  p.  50),  that  the 
railroad  company  is  the  owner  in  fee  of  all  the  wharves,  piers 
and  other  works  constructed  by  it  east  of  its  main  tracks,  be- 
tween Park  Row  and  Sixteenth  street;  and  that  it  is  also  en- 
titled to  the  use  in  perpetuity  of  all  the  ground  it  has  posses- 
sion of  between  Park  Row  and  Randolph  street.  The  right 
of  the  company  to  complete  the  slip  near  the  foot  of  Sixteenth 
street  was  also  expressly  affirmed.  (Ante,  p.  52).  If  this 
ruling  shall  be  sustained,  and  the  State  is  bound  by  the  Act  of 
1869,  ^  *s  dear  that  no  encroachment  has  been  either  made  or 
threatened  by  the  company  upon  the  domain  of  the  State,  and 
this  suit  cannot  be  maintained. 

XVII.  The  title  of  the  railroad  company  to  the  land  it  has 
reclaimed  from  the  lake  does  not  depend  altogether  upon  the 
grants  made  in  1869.     It  was  held  in  the  court  below,  that  the 


I4I 

company's  right  to  the  possession  and  use  of  this  land  was 
clear  upon  other  grounds,  and  the  decision  is  undouhtedly  cor- 
rect. 

A  large  part  of  the   reclaimed  land  is  within  the  limits   pre- 
scribed   in  the  ordinance  of   1852,    which,   as    has   been    seen 
(point   IV),  was  ratified  and  confirmed  by  ihe   legislature   in 
1 861. 

The  piers  and  slips  north  of  Randolph  street,  were  con- 
structed in  front  of  the  company's  land  on  the  shore.  The 
right  of  a  riparian  proprietor  to  erect  wharves  in  the  shoal 
water  of  the  lake  adjacent  to  his  land,  has  been  so  often  af- 
firmed by  this  court,  that  the  subject  is  no  longer  open  to  con- 
troversy. (See  point  VI).  The  right  does  not  depend  upon 
title  to  the  soil  under  the  water,  but  may  be  exercised  to  the 
same,  and  no  greater,  extent,  whether  the  fee  be  in  the  riparian 
proprietor  or  in  the  State.  The  plan  for  the  exterior  piers  1, 
2  and  3,  was  submitted  for  approval  to  the  War  Department, 
which  has  exclusive  control  of  the  harbor,  and,  after  reference 
to  a  board  of  engineer  officers  and  their  report  thereon,  re- 
ceived its  official  sanction.  (Ante,  pp.  27-29).  No  law  of 
the  State  was  infringed  in  making  these  improvements,  nor  is 
it  pretended  that  they  are  an  obstruction  to  the  public  right  of 
navigation.  They  are,  on  the  contrary,  essential  aids  to  navi- 
gation and  conducive  to  the  purposes  for  which  the  harbor  was 
intended. 

The  erection  Of  the  wharf  at  the  foot  of  Thirteenih  street 
was  also  authorized  by  the  War  Department.  (Ante,  p.  30). 
This  structure,  as  well  as  the  pier  built  in  1S70  to  replace  the 
old  breakwater  between  Twelfth  street  and  a  prolongation  of 
the  north  line  of  lot  21,  which  had  fallen  into  decay,  is  in  front 
of  land  on  the  shore  to  which  the  company  has  an  undisputed 
title. 


* 


-- 


142 


The  larger  part  of  the  triangular  space  at  the  foot  of  Wash- 
ington and  Madison  streets,  outside  the  breakwater  of  1869, 
which  was  filled  in  by  the  company  in  1873,  *s  within  the  area 
designated  in  the  ordinance  of  1852,  and  the  use  of  the  whole 
is  indispensable  to  the  convenient  operation  of  the  railroad. 

By  the  express  terms  of  its  original  charter,  the  company  was 
authorized  to  enter  upon  and  take  possession  of  any  lands  or 
waters  belonging  to  the  State,  which  are  necessary  to  the  com- 
plete operation  of  its  road.  (See  point  III.)  That  the  use  of 
all  the  land  which  has  been  reclaimed  from  the  lake,  is,  in  fact, 
necessary  to  the  efficient  operation  of  the  railroad,  is  con- 
clusively shown  by  the  evidence.      (See  ante,  p.  31.) 

It  may  be  said  that  other  railroad  companies  have  been 
permitted  to  use  the  Illinois  Central  tracks  and  grounds,  and 
that  more  land  is  needed  for  handling-  the  business  than  would 
otherwise  be  required.  It  appears  that  when  the  testimony 
was  taken  two  companies  were  thus  accommodated.  One  of 
them  (the  Michigan  Central)  owns  the  freight  grounds  it  oc- 
cupies, and  an  equal  interest  with  the  Illinois  Central  Company 
in  the  old  passenger  station-house.  It  also  uses  the  Illinois 
Central  tracks  in  the  passage  of  its  trains  to  and  from  the  city 
- — the  compensation  paid  for  their  use  being  fixed  at  a  certain 
sum  for  each  passenger  and  every  ton  of  freight  carried.  This 
arrangement  has  existed  since  the  railroad  was  first  opened. 
The  other  company  (the  Baltimore  and  Ohio)  was  provided 
with  temporary  accommodations  (since  terminated)  of  a  simi- 
lar character.  (Rec,  378-9,  382,  386-7.)  Neither  of  these 
companies  has  ever  occupied  a  foot  of  ground  outside  the 
breakwater  of  1869.  The  piers  which  have  been  built  north 
of  Randolph  street  and  at  the  foot  of  Thirteenth  street  have 
never  been  used  by  either. 

The  public  are  not  injured  by  furnishing  such  accommoda- 
tions to  other  companies;  nor  has  the  Illinois  Central  Company, 


*43 

in  what  has  been  done,  exceeded  its  lawful  powers.  All  uses 
of  railroad  tracks  and  terminal  grounds  are  legitimate  which 
are  authorized  by  law,  and  by  the  laws  of  Illinois  such  accom- 
modations may  be  lawfully  granted.  It  is  no  objection  even 
to  the  exercise  of  the  right  of  eminent  domain,  that  the  neces- 
sity of  acquiring  additional  land  is  caused  by  furnishing  track- 
age or  depot  accommodations  to  other  companies.  In  such 
case  the  necessities  of  a  lessee  are  considered  in  law  as  the 
necessities  of  the  lessor  company,  and  it  is  held  that  a  lessee 
may  prosecute  proceedings  of  condemnation  in  the  name  of 
the  lessor  when  the  public  necessity  requires  it. 

Chicago  and  W.  I  R.  R.  Co.,  v.  Ills.  Cen- 
tral R.  R.  Co.,  113  111.,  156,  166. 

Chicago,  R.  I.  and  P .  Ry.    Co.    v.    Smith,    11 1 

in.,  364. 

City  of  Chicago  v.  Chicago  and    W.I.    R.     R 

Co.,  105  111.,  74. 
Chicago  and  W.  I.  R.  R.  Co.    v.    Dunbar,    100 

III,  112,  137-8. 
Kip  v.  Neiv  York  and  Harlem  R.    R.    Co.,    6  J 

N.  Y.,  227. 
Matter  of  Staten  Island  Ra fid  Transit  Co.,  103 

N.  Y.,  251. 

See  also: 

Lake  Superior  and  31.  R.  R.  Co.  v.  United  States, 
93  U.  S.,  442,446. 


XVJII.  The  railroad  company  is  lawfully  entitled  to  the 
enjoyment  of  other  rights,  in  no  way  dependent  upon  the  Act 
of  1869,  of  which  it  is  improperly  deprived  by  the  decree 
entered  in    the  court  below. 

The  company  is  the  lawful  owner  of  the  land  bordering  on 
the  lake  between  Park  Row  and  Sixteenth  street,  and  as  such 


i44 

owner  has  all  the  ordinary  rights  of  a  littoral  or  riparian  pro- 
prietor with  regard  to  the  adjacent  waters;  it  stands  in  the 
same  situation  with  respect  to  such  rights  as  the  former 
owner. 

Sw niton   Water  Works  Co.  v.    Wilts    and  Berks 
Caral  Co.,  L.  R.  7  Eng.  and  Ir.    Ap.  Cases, 
697. 
Same  ease,  L.  R.  9  Chan.  Ap.  Cases,  451. 
Hanford  v.  St.  Paid  and D.  R.    Co.,  43    Minn., 
104. 

One  of  the  rights  incident  to  land  so  situated,  is  to  build  and 
maintain  suitable  landing  places,  wharves  and  piers  in  the  wa- 
ter in  front  of  it.  It  is  a  right,  no  doubt,  subject  to  certain 
limitations.  It  must  be  exercised  in  subordination  to  the  pub- 
lic right  of  navigation,  and  it  is  also  subject,  perhaps,  to  such 
reasonable  regulations  and  restrictions  as  the  legislature  by 
virtue  of  its  general  governmental  power  may  think  proper 
to  establish.  It  is,  nevertheless,  a  right  which  belongs  to  the 
land,  and  it  is  valuable.  It  is  a  property  right  which  cannot 
be  taken,  even  for  public  use,  without  compensation. 

No  restrictions  on  the  exercise  of  the  right  have  been  im- 
posed by  the  legislature  of  Illinois;  but  any  further  exercise  of 
it  by  the  riparian  proprietor  in  this  case,  under  any  circum- 
stances, is  absolutely  prohibited  by  the  decree  of  the  court  be- 
low. 

It  is  easily  conceivable,  and  indeed  extremely  probable,  that, 
even  in  the  near  future,  additional  wharves  and  slips  will  be  re- 
quired on  this  part  of  the  shore  for  the  suitable  accommodation 
of  lake  commerce,  from  which  the  railroad  company  would  also 
derive  important  advantages.  No  one  but  the  riparian  pro- 
prietor has  the  right  to  make  such  improvements,  and,  upon  the 
case  made  by  the  pleadings  and  evidence,  a  decree  which  pro- 


1 45 


hibits  the  construction  of  suitable  and  necessary  works  of  this 
character  cannot  be  justified. 

The  company  is  also  prohibited  by  the  decree  from  taking 
possession  of  the  hitherto  unoccupied  portion  of  the  strip 
three  hundred  feet  wide,  described  in  the  ordinance  of  1852. 
Attention  has  been  called  to  this  point  on  a  preceding  page 
(see  point  IV),  where  we  have  endeavored  to  show  that  the 
rights  of  the  company  have  not  been  forfeited  by  abandonment 
or  non-user.  The  ordinance  of  1852  w^.s  ratified  by  the  legisla- 
ture in  i86i,andisof  perpetual  obligation.  As  between  the 
company  and  the  city  or  the  State,  the  right  of  the  former  to 
the  use  of  the  entire  strip  is  as  perfect  to-day  as  when  the 
right  first  accrued.  There  are  no  equitable  grounds  on  which 
the  company  can  be  deprived  of  any  part  of  it. 

The  power  of  the  War  Department  to  determine  whether, 
regard  being  had  to  the  interests  of  commerce,  the  railroad 
company  can  be  permitted  to  occupy  any  more  land  in  the 
harbor,  and,  if  so,  upon  what  conditions,  is  not  disputed.  But 
this  is  a  separate  matter,  which  should  be  left  for  adjustment 
to  the  United  States  authorities  in  charge  of  the  harbor.  The 
State  has  no  lawful  control  over  such  questions,  and  should 
not  be  placed  in  a  position  by  the  decree  which  will  frustrate 
all  hopes  of  making  a  satisfactory  arrangement  advantageous 
to  all  the  large  interests  concerned. 

The  exceptions  taken  to  that  part  of  the  decree  by  which 
the  city  is  invested  with  title  to  the  land  occupied  by  the  rail- 
road company  between  Randolph  street  and  Park  Row,  and 
the  consequent  right  to  construct  wharves  and  docks  in  front 
of  it,  should  also  be  sustained.  It  is  impossible  to  hold,  con- 
sistently with  settled  principles  (see  point  XV),  that  the  city 
has  any  interest,  either  legal  or  equitable,  in  the  premises  re- 
ferred to. 


I46 

Finally,  we  insis.t  that  the  Act  of  1869  opposes  an  im- 
pregnable barrier  to  the  pretensions  of  both  the  State  and  the 
city.  The  objections  raised  to  the  validity  of  the  Act  are 
wholly  devoid  of  legal  merit;  and  to  revoke  the  grants  made 
by  it,  was  beyond  the  constitutional  power  of  the  legislature. 

Benjamin  F.  Ayer, 

Of  Counsel  for  Appellant. 


KP 
RAI 


